Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing. (b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries. (c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives. (d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing. (e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Rock-Tenn CO), Merger Agreement (SMURFIT-STONE CONTAINER Corp), Merger Agreement (Rock-Tenn CO)
Financing. (a) Parent covenants If the Debtor shall be subject to any Insolvency Proceeding and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting if First Lien Creditor consents to the use of the Company’s and its Subsidiaries’ logos; provided that cash collateral (as such logos are used solely term is defined 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 Section 363(a) of the Company Bankruptcy Code; herein, “Cash Collateral”), on which First Lien Creditor has a Lien or consents to the Debtor obtaining financing provided under Section 364 of the Bankruptcy Code or any similar provision of its Subsidiaries)any other Bankruptcy Law (such financing, (v) execute and deliver (or use reasonable best efforts to obtain from its advisorsa “DIP Financing”), and cause its Subsidiaries if such Cash Collateral use or DIP Financing, as applicable, meets the applicable DIP Financing Conditions, then Second Lien Creditor unconditionally agrees that it will consent to execute and deliver such Cash Collateral use or raise no objection to such DIP Financing, as applicable (or use reasonable best efforts other than objections to obtain from its advisorsthe failure to grant adequate protection that Second Lien Creditor is permitted to seek under Section 6.5 in connection therewith), credit agreements and, if DIP Financing is involved, Second Lien Creditor will subordinate its Liens in the Collateral (and in any other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters assets of the Debtor that may serve as collateral (including consents avoidance actions, or the proceeds thereof) for such DIP Financing) to the Liens securing such DIP Financing. If such Cash Collateral use or DIP Financing, as applicable, meets some, but not all, of accountants for the applicable DIP Financing Conditions, then Second Lien Creditor unconditionally agrees that it will only withhold its consent to such Cash Collateral use or will only raise an objection to such DIP Financing based upon the DIP Financing Condition(s) which are not met and will not withhold its consent or object on any other basis (other than objections to the failure to grant adequate protection that Second Lien Creditor is permitted to seek under Section 6.5 in connection therewith) and, if DIP Financing is involved and any permitted objection of their reports Second Lien Creditor is withdrawn, overruled, or otherwise eliminated, Second Lien Creditor will subordinate its Liens in the Collateral (and in any materials relating other assets of the Debtor that may serve as collateral (including avoidance actions, or the proceeds thereof) for such DIP Financing) to the Liens securing such DIP Financing). If the proposed DIP Financing meets the applicable DIP Financing Conditions, Second Lien Creditor agrees that it shall not, and nor shall any of the Second Lien Claimholders, directly or indirectly, provide, offer to provide, or other documents and instruments ancillary support any DIP Financing secured by a Lien senior to or pari passu with the Liens securing the First Lien Priority Debt; provided, however, that the First Lien Creditor may withhold its consent or object to any DIP Financing as may be reasonably requested proposed by Parent as customary Second Lien Creditor or any Second Lien Claimholder which is proposed if First Lien Creditor has not proposed or consented to DIP Financing which satisfies the DIP Financing Conditions. If, in connection with the any Cash Collateral use or DIP Financing, including any amendments Liens on the Collateral held by the First Lien Claimholders to secure the First Lien Debt are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “carve-out,” or fees owed to the United States Trustee, and so long as the amount of any such surcharge, claim, carve out or fee is reasonable under the circumstances, then the Liens on the Collateral of the Company’s Second Lien Claimholders securing the Second Lien Debt shall also be subordinated to such interest or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any claim and shall remain subordinated to the Liens on the Collateral of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably First Lien Claimholders consistent with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Intercreditor Agreement (Boxlight Corp), Intercreditor Agreement (Boxlight Corp), Intercreditor Agreement (Boxlight Corp)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant Subject to the terms and conditions of Section 1.9 in respect of the Company RSU Awardsthis Agreement, Parent shall (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries Affiliates to, and shall ) use its commercially reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to consummate and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing on the terms and subject only to the conditions (provided that such requested cooperation does not unreasonably interfere with including pursuant to any “flex” provisions in any fee letter relating to the ongoing operations of Debt Financing) set forth in the Company and its Subsidiaries)Financing Letters, including using commercially reasonable best efforts to (i) provide information relating to comply with its obligations under (A) the Company Equity Funding Letters and its Subsidiaries to (B) the Financing Sources that is reasonably available to the Company Debt Commitment Letters and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)definitive agreements related thereto, (ii) participate and cause senior management maintain in effect the Financing Letters (subject to participate Parent’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessionsaccordance herewith) and sessions with until the rating agencies, in each case, relating to the completion earliest of the consummation of the Transactions, the termination of this Agreement or the time at which any Alternative Debt Financing by the Financing Sourcesis available, (iii) assist negotiate and enter into definitive agreements with respect to the Debt Financing on a timely basis on terms and conditions (including the flex provisions) contained in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for Debt Commitment Letters or otherwise not materially less favorable with respect to conditionality to Parent in the Financing, and (B) materials for rating agency presentationsaggregate than those contained in the Debt Commitment Letters, (iv) cooperate with the marketing efforts for any component of satisfy on a timely basis all conditions contained in the Financing (Letters that are applicable to Parent and its Affiliates and the definitive agreements related thereto, including consenting the payment of any commitment, engagement or placement fees required as a condition 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 Debt Financing 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)Equity Financing, as applicable, (v) execute if all conditions to the Debt Financing and deliver the Equity Financing have been satisfied in accordance with the Debt Commitment Letters and Equity Funding Letters, respectively, cause the Persons committing to fund the applicable Financing to fund such Financing at the Closing and (or use reasonable best efforts to obtain from vi) enforce its advisors), rights under the Financing Letters and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit the definitive agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to . To the Financing as may be extent reasonably requested by the Company in writing from time to time, Parent as customary shall keep the Company reasonably informed on a reasonably current basis and in connection with the Financing, including any amendments of any reasonable detail of the Company’s or status of its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of arrange the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence copies (including material drafts) of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if material Debt Financing documents. Parent substitutes other debt or equity financing for all or a portion of the Financing, shall give the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.prompt notice upon
Appears in 3 contracts
Samples: Merger Agreement (Ares Management LLC), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Financing. (a) Parent covenants and agrees with Prior to the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing DateCharter Closing, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing on the terms and conditions described in the Financing Commitment (provided that such requested cooperation does or any other Financing in lieu thereof) (subject to any amendments, modifications, waivers or replacements not unreasonably interfere with the ongoing operations of the Company and its Subsidiariesprohibited by this Section 6.19(a)), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to maintain in effect the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Commitment, (ii) participate and cause senior management satisfy on a timely basis (or obtain a waiver of) all conditions to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with funding the rating agencies, in each case, relating to the completion of the Financing by the Financing SourcesCommitted Financing, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses negotiate and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the enter into definitive agreements with respect thereto on terms and conditions contemplated described in the Financing Commitment (subject to any amendments, modifications, waivers or replacements not prohibited by this Section 6.19(a)) on or prior to the Charter Closing Date, (iv) enforce its rights under the Financing Commitment and (v) in the event that all conditions in the Financing Commitment (or any other Financing in lieu thereof) have been satisfied, cause the lenders and other Persons providing the Committed Financing (or any other Financing in lieu thereof) to fund on the Charter Closing Date the Committed Financing (or any other Financing in lieu thereof) required to consummate the Transactions. To the extent requested by the Company from time to time, Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to obtain the Financing (or Alternative Financing) and provide to the Company copies of all material documents related to the Financing (or Alternative Financing). In the event any portion of the Committed Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Financing Commitment Letter (and subject to any such agreements amendments, modifications or replacements not prohibited by this Section 6.19(a)) prior to the “Definitive Financing Agreements”), Charter Closing Date for any reason (A) Parent shall promptly notify the Company in writing and (B) adversely impact Parent shall use reasonable best efforts to obtain, as promptly as practicable following the ability occurrence of Parent such event, alternative financing (the “Alternative Financing”) in an amount sufficient to enforce its rights against other parties consummate the Transactions (after giving effect to the Commitment Letter or the Definitive any committed financing); provided, that such Alternative Financing Agreements, or (C) would not reasonably be expected to prevent, impede or delay the consummation of the Merger and Transactions; provided, further that Parent shall have no obligation to accept (i) any fees, interest or other economic terms (taken as a whole) that are less favorable in any respect to Parent than the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.fees,
Appears in 3 contracts
Samples: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (Brookfield Asset Management Inc.), Merger Agreement (GGP Inc.)
Financing. (a) Parent covenants and agrees with Sub shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange and obtain the CompanyEquity Financing on the terms and conditions described in or contemplated by the Equity Financing Commitments, on behalf of itself and its Subsidiaries, in each case prior to when the conditions to the Closing set forth in Article IX (other than those conditions that it shall take all action necessary to ensure that as of by their nature cannot be satisfied until the Closing Date) are satisfied, Parent and Merger Sub will have funds, in the aggregate, sufficient for including to (i) maintain in effect the payment of Equity Financing Commitments; (ii) satisfy on a timely basis all conditions and covenants applicable to Parent and Sub in the aggregate Cash Consideration Equity Financing Commitments and any other amounts otherwise comply with its obligations in each case thereunder; (iii) in the event that all conditions in Annex I have been satisfied, consummate the Equity Financing on or prior to the date the Closing is required to be paid pursuant to Article II, the aggregate amount of cash to be deposited occur pursuant to Section 1.7(b2.01(d); and (iv) in respect of the Reserved Company Common Stock, fully enforce each Equity Financing Party’s obligations (and the aggregate amount rights of cash to be paid pursuant to Parent and Sub) under the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the FinancingEquity Financing Commitments.
(b) The Company shallNeither Parent nor Sub shall amend, shall cause its Subsidiaries toalter, and shall use its reasonable best efforts or waive, or agree to cause each of its and their respective Representativesamend, including legalalter or waive (in any case whether by action or inaction), tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations any term of the Company and its Subsidiaries), including using reasonable best efforts to Equity Financing Commitments that (i) provide information relating amends or modifies any of the conditions precedent to the Company and its Subsidiaries receipt of the Equity Financing or imposes additional conditions precedent to the Financing Sources that is reasonably available to the Company and is customary for completion receipt of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Equity Financing, (ii) participate and cause senior management to participate in a reasonable number of meetings with adversely affects the rights of, or remedies available to, the Company under the Equity Financing Sources and other presentationsCommitments, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, or (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting would or would reasonably be expected 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Offer, the Merger and or the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to Equity Financing, in each case, without the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to prior written consent of the Financing shall be deemed to refer instead to such alternative financingCompany.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Mueller Industries Inc), Merger Agreement (Tecumseh Products Co), Merger Agreement (Tecumseh Products Co)
Financing. (a) Parent covenants Notwithstanding anything contained in this Agreement to the contrary, Buyers acknowledge and agrees with 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 CompanyHoldco Closing Consideration or the Operating Entity Closing Consideration on the Closing Date shall constitute a willful and material breach of this Agreement. In addition, on behalf for the avoidance of itself doubt, Buyers acknowledge and its Subsidiariesagree that the existence of any conditions contained in the Debt Commitment Letters or the Debt Financing shall not constitute, that it shall take all action necessary nor be construed to ensure that as constitute, a condition to the consummation of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for transactions contemplated hereby.
(b) Buyers shall use their commercially reasonable efforts to (i) arrange the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to Debt Financing on the terms of Section 1.9 and conditions described in respect of the Company RSU AwardsDebt Commitment Letters, (ii) enter into definitive agreements with respect thereto on the funding of any required refinancings or repayments of any existing indebtedness of terms and conditions contained in the Company or Parent Debt Commitment Letters (on terms no less favorable to the applicable Buyer), which agreements shall be in connection with effect as promptly as practicable after the Merger or date hereof, but in no event later than the FinancingClosing, and (iii) consummate the payment 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 all fees the applicable Debt Commitment Letter) provided that (x) the Buyers will not, and expenses 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 other payment obligations required (y) Holdco Buyer will not without Sellers consent permit the bridge facility commitment under the Debt Commitment Letter to be paid 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 any portion of the Debt Financing becomes unavailable in the manner or satisfied from the sources contemplated in the Debt Commitment Letters, (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 Parentany party of any of the Debt Commitment Letters, Merger Sub any alternative financing commitment or the Financing Agreements of which Buyers become aware or any termination thereof and (z) otherwise keep the Surviving Entity in connection with Company reasonably informed of the Merger and status of Buyers’ efforts to arrange the FinancingDebt Financing (or any replacement thereof).
(bc) The Company shall, at the sole cost of Buyers, use its commercially reasonable efforts to, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, Representatives to use their commercially reasonable efforts to, provide all cooperation reasonably requested by Parent with reasonable notice 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 ongoing operations business of the Company and its SubsidiariesCompany), including using commercially reasonable best efforts to (i) provide information relating to the Company participate in meetings, due diligence sessions, presentations, and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)sessions with rating agencies, (ii) participate and cause senior management to participate in a reasonable number of meetings assist with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) 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) cooperate with the marketing efforts for any component of the Financing (including consenting to the use of obtain customary accountant’s comfort letters and consents from the Company’s independent auditors with respect to the Required Information; 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), (v) execute assist with the preparation of any pledge and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), security documents or other definitive financing documents and instruments ancillary to facilitating the Financing pledging of collateral as may be reasonably requested by Parent as customary in connection with the Financinga Buyer, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any or pledge of the Company or its Subsidiaries under any such document or agreement shall be effective under credit agreementsuntil the Closing.
(d) Each Buyer shall indemnify, loan documents 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 currency incurred by them in connection with such Buyer’s arrangement of its portion of the Financing, any cooperation provided pursuant to this Section 6.19 and any information utilized in connection therewith, except in the event such Losses arose out of or interest hedging arrangements result from the gross negligence, fraud, willful misconduct or amendments 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 such existing arrangements the Sellers written notice of any Debt Obligations of the Company and its Subsidiaries until Entities that Buyers plan to repay in full at the Effective TimeClosing (which shall include any Interim Debt Obligations). The Company shall, (vi) at the sole cost of Buyers, use its commercially reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representationsto, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, cause its Subsidiaries and their respective Representatives shall not have any responsibility forto use their commercially reasonable efforts to, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise provide commercially reasonable cooperation in connection with the transactions contemplated by this Agreement), repayment of such Debt Obligations. Buyers’ acknowledge and agree that their obligations hereunder are not conditioned in any manner upon the Company obtaining consent under any Contract with respect to a Debt Obligation. For the avoidance of doubt Buyer shall bear (i) the cost of obtaining any consents under Debt Obligations and (iiiii) shall indemnify any prepayment and hold harmless the Company, its Subsidiaries other related fees 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 any of them prior to the Effective Time expenses in connection with the arrangement prepayment of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective RepresentativesDebt Obligations contemplated hereby.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Sunedison, Inc.), Purchase and Sale Agreement (TerraForm Power, Inc.)
Financing. (a) Parent covenants Verizon shall use its commercially reasonable efforts to take, or cause to be taken, all actions and agrees with to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Companyproceeds of, the Financing and, if applicable, the Replacement Financing on behalf of itself the terms and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, conditions described in the aggregateFinancing Documents and Replacement Financing Documents, sufficient for including using commercially reasonable efforts to (i) comply with its obligations and satisfy the payment conditions precedent to funding under the Financing Documents and, if applicable, Replacement Financing Documents; (ii) upon satisfaction of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article IIconditions set forth in Section 3.02 of the Loan Facility (and/or, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of certainty of funding, such substantially equivalent conditions (or conditions that are more favorable to Verizon) as may appear in any Replacement Financing Document), consummate the Reserved Company Common StockFinancing and, and if applicable, the aggregate amount of cash Replacement Financing at or prior to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, Closing; and (iii) cause the payment of all fees and expenses and other payment obligations Financing Sources and, if applicable, Replacement Financing Sources to fund on the Closing Date the Financing and, if applicable, the Replacement Financing to the extent required to be paid or satisfied by Parent, Merger Sub and consummate the Surviving Entity Transaction in connection accordance with the Merger and terms thereof (including, to the Financingextent commercially reasonable, by promptly taking enforcement action under the Financing Documents and, if applicable, the Replacement Financing Documents in the event of a breach by any Financing Sources or Replacement Financing Sources).
(b) The Company shall, Verizon shall cause its Subsidiaries to, and shall use its reasonable best efforts have the right to cause each substitute the proceeds of its and their respective Representatives, consummated debt (including legal, tax, regulatory and accounting, to, provide unsecured notes) or equity offerings for all cooperation reasonably requested by Parent with reasonable notice in connection with or any portion of the Financing (provided or, if applicable, Replacement Financing by reducing commitments under the Financing and, if applicable, any Replacement Financing; provided, that to the extent any consummated debt has a scheduled special or mandatory redemption right, such requested cooperation does right is not unreasonably interfere with exercisable prior to the ongoing operations Termination Date. Further, Verizon shall have the right to substitute commitments in respect of other debt or equity financing for all or any portion of the Company and its Subsidiaries), including using reasonable best efforts to Financing from the same and/or alternative bona fide third-party financing sources (“Replacement Financing Sources”) so long as (i) provide information relating all conditions precedent to effectiveness of definitive documentation for such debt or equity financing have been satisfied and the Company and its Subsidiaries conditions precedent to funding under the Financing Sources that is reasonably available to the Company and is customary for completion debt financing or issuance of the Financing by equity financing are, in respect of certainty of funding, substantially equivalent to (or conditions that are more favorable to Verizon than) the Financing Sources (including audited consolidated financial statements conditions set forth in Section 3.02 of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availableLoan Facility, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management in respect of any debt financing, prior to participate funding of the loans thereunder, the commitments in a reasonable number respect of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions such debt financing are subject to restrictions on assignment which are substantially equivalent to or more favorable to the Verizon than the restrictions set forth in Section 8.07 of the Loan Facility (including accounting due diligence sessionsany such debt or equity financing which satisfies the foregoing clauses (i) and sessions with (ii), the rating agencies, in each case, relating to “Replacement Financing”; the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) definitive documentation for any customary offering documents, bank information memoranda, prospectuses and similar documents for the such Replacement Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the “Replacement 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 SubsidiariesDocuments”), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding Verizon shall have the foregoingright from time to time to amend, until replace, supplement or otherwise modify, or waive any provision or remedy under, the Effective Time occursFinancing Documents or Replacement Financing Documents; provided, neither that Verizon shall not, without the Companyprior written consent of Vodafone, at any of its Subsidiaries, nor their respective Representatives, shall time prior to the Closing: (i) be required permit any amendment, replacement, supplement or modification to, or any waiver of any material provision or remedy under, any Financing Document or Replacement Financing Document if such amendment, replacement, supplement, modification or waiver (A) adds any new (or modifies, in a manner materially adverse to take Verizon, any action in existing) conditions to the capacity of a director consummation of the Company Financing or any Replacement Financing (as applicable), (B) reduces the aggregate amount of its Subsidiaries with respect the Financing and the Replacement Financing other than to the extent that (1) such reduction is required by the terms of the Loan Facility or (2) Verizon has available to it Replacement Financing or cash on hand in an amount equal to such reduction, (C) materially adversely impacts the ability of Verizon to enforce its rights against other parties to any Financing Document as so amended, replaced, supplemented, modified or alternative financing that Parent may raise waived, relative to the ability of Verizon to enforce its rights against such other parties to any Financing Document as in connection with effect on the date hereof or Replacement Financing Document as in effect on the date of execution thereof, or (D) prevents, impedes or materially delays the consummation of the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties; provided, further, that notwithstanding the foregoing, Verizon may amend the Financing Documents and/or Replacement Financing Documents to add lenders, lead arrangers, syndication agents, documentation agents or similar entities who had not executed any Financing Document and/or Replacement Financing Document; or (ii) be required to pay any commitment or terminate the Loan Facility other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related than to the extent that (A) the commitments under the Loan Facility have been reduced to zero in accordance with its terms or (B) Verizon has obtained Replacement Financing in an aggregate amount equal to the commitment under the Loan Facility at the time of such termination of the Loan Facility. Verizon shall promptly following execution deliver to Vodafone copies of any such amendment, replacement (including any Replacement Financing Document), supplement, modification or waiver (which may be redacted to delete any compensation information). Notwithstanding anything to the contrary in this Agreement, Verizon agrees that it shall not reduce the aggregate amount of all unfunded commitments in respect of the Financing and, if applicable, Replacement Financing (whether as a result of a disposition of assets, debt issuance or alternative financing equity issuance but, for the avoidance of doubt, not as a result of the funding of the loans thereunder) to an amount less than Twenty Billion Dollars ($20,000,000,000) without Vodafone’s consent, which shall not be unreasonably withheld, conditioned or delayed.
(d) Verizon acknowledges and agrees that Parent may raise in connection with Vodafone and its Affiliates (including, prior to the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with Closing, the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this AgreementSold Entities). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with and, prior to the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective TimeClosing, the Company, Partnership or any of its Subsidiaries and their respective Representatives Representatives, shall not have any responsibility for, or incur any liability to to, any Person under, under or pursuant to the Financing (or alternative financing that Parent may raise in connection with Replacement Financing pursuant to the transactions contemplated by this Agreement)Financing Documents or Replacement Financing Documents, if any, and (iii) that Verizon shall indemnify and hold harmless Vodafone and its Affiliates (including, prior to the CompanyClosing, the Sold Entities), their respective Representatives and, prior to the Closing, the Partnership and 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out suffered or incurred by any of them in connection with the Financing or result the Replacement Financing pursuant to the Financing Documents or Replacement Financing Documents, if any, except to the extent resulting from the willful misconduct or gross negligence any breaches of the Companyrepresentations, any warranties or covenants of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company Vodafone under this Agreement. Verizon shall comply with its covenants in Section 6.11(b) keep Vodafone reasonably informed with respect to all material activity concerning the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date status of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions financing contemplated by the Commitment Letter Financing Documents and Replacement Financing Documents (if any), it being understood, for the avoidance of doubt, that nothing in this Section 5.9(d) shall relieve Vodafone of any liability pursuant to Section 8.3 or require Verizon to provide indemnification in respect of any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingliability.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Vodafone Group Public LTD Co), Stock Purchase Agreement (Verizon Communications Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant Prior to the terms of Section 1.9 in respect of the Company RSU AwardsClosing, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and each Seller shall use its reasonable best efforts to provide, and shall use reasonable best efforts to cause each of its Representatives and the TGE Entities and their respective RepresentativesRepresentatives to provide, including legal, tax, regulatory and accounting, to, provide all cooperation assistance with the Debt Financing as is reasonably requested by Parent with reasonable notice Acquirors, in each case, in connection with the Financing (provided that such requested cooperation does arrangement of, and the satisfaction on a timely basis of all relevant conditions precedent to, the Debt Financing. Such assistance shall include, but not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts to be limited to: (i) provide information relating reasonable participation in, and assistance with, the preparation of the Marketing Material and rating agency presentations; (ii) reasonable participation by senior management of the TGE Entities in a reasonable number of rating agency presentations (including with respect to the Company Existing Change of Control Notes Consents), meetings with prospective lenders, road shows and drafting sessions, in each case upon reasonable prior notice and at times and locations to be mutually agreed in good faith; (iii) delivering the Financing Information to Acquirors (and such other financial and operational information reasonably requested by the Acquirors or the Financing Sources), provided that Sellers shall not be responsible for the preparation of pro forma or projected financial information, which shall be prepared solely by Acquirors and Sellers shall have no liability with respect to such information prepared by Acquirors) as promptly as reasonably practicable once available; (iv) delivering customary authorization letters authorizing the distribution of Marketing Material to prospective investors (including in connection with any Debt Financing of TEP and its Subsidiaries pursuant to the Senior Bridge Facility (as such term is defined in the Debt Commitment Letter) solely in connection with the purchase, if any, of any Existing Change of Control Notes validly tendered pursuant to a Change of Control Offer, Alternate Offer or other offer to purchase as described in subclauses (i) and (ii) of Section 6.15(b)); (v) furnishing Acquirors and the Financing Sources that is reasonably available promptly, and, in any event, at least four Business Days prior to the Company Closing Date, with all documentation and is customary for completion other information in respect of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for TGE Entities that any interim period or periods of the Company ended after the date of the most recent audited financial statements and Lender has requested in writing at least 40 days nine Business Days prior to the Closing Date that is required by Governmental Authorities under applicable “beneficial ownership,” “know your customer” and information regarding anti-money laundering rules and regulations, including the business, operations and financial projections USA PATRIOT Act; (vi) assisting Acquirors in connection with the preparation by Acquirors of the Company)Debt Financing Documents (and, in the case of any Debt Financing of TEP and its Subsidiaries pursuant to the Senior Bridge Facility (as such term is defined in the Debt Commitment Letter) or in connection with an offering of notes in lieu thereof solely in connection with the purchase, if any, of any Existing Change of Control Notes validly tendered pursuant to a Change of Control Offer, Alternate Offer or other offer to purchase as described in subclauses (i) and (ii) participate of Section 6.15(b), executing and cause senior management to participate in a reasonable number of meetings delivering the Debt Financing Documents with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessionsrespect thereto) and sessions the issuance of securities, borrowing of loans and/or granting of a security interest (and perfection thereof) in the Subject Interests, including (x) requesting that the transfer agent with the rating agencies, in each case, relating respect to the completion applicable TGE Entity make any applicable notations in the equity register of the applicable TGE Entity reflecting the pledge of its equity interests that constitute collateral in favor of the Financing by Sources or an agent or trustee on their behalf if required and (y) causing the Organizational Documents of the TGE Entities to be amended in a manner to permit or facilitate the Debt Financing Sourcesand security interests granted in connection therewith, (iiivii) assist in requesting customary independent accountants’ comfort letters (including customary “negative assurance” statements) and consents from the preparation auditor(s) of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component audited financial statements provided as part of the Financing Information, including issuing any customary representation letters in connection therewith to such auditor(s) in connection with any financial statements included in any offering documents in respect of the Debt Financing and (including consenting viii) cooperating as contemplated by Section 6.15. Information provided by Sellers or the TGE Entities in connection with the Debt Financing shall only be provided to sources or potential sources of financing and rating agencies that have agreed to be bound by (x) the Confidentiality Agreement as if such Person(s) were party thereto or (y) customary confidentiality provisions. Sellers hereby consent to the use of all of the Company’s and its SubsidiariesTGE Entities’ logos; logos in connection with the Debt Financing, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Sellers, the Company TGE Entities, their respective Affiliates or its Subsidiaries their respective business, or the reputation or goodwill thereof. Acquirors acknowledge and agree that the obtaining of the Company or any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Debt Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters constitute a condition to the Financing Sources authorizing the distribution of information Acquirors obligation to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with close the transactions contemplated by this Agreement.
(b) if such Representative believes such action would Notwithstanding anything to the contrary in Section 6.4(a), (i) no Seller or TGE Entity or any of their respective Affiliates or any of their respective equityholders or governing bodies shall be inconsistent with their fiduciary dutiesrequired to pass resolutions or consents to approve or authorize the execution of the Debt Financing Documents or execute or deliver any certificate, document, instrument or agreement in connection therewith or the Financing that is effective prior to the Closing (except for (A) the authorization letters set forth in Section 6.4(a)(iv) and (B) those relating to the Specified Funded Indebtedness Accommodations); (ii) no obligation of any Seller or TGE Entity or any of their respective Affiliates or any of their respective partners, members or Representatives under any certificate, document, instrument or agreement, entered into pursuant to the foregoing shall, without such Person’s prior express written consent, be effective until Closing (except for (A) the authorization letters set forth in Section 6.4(a)(iv) and (B) those relating to the Specified Funded Indebtedness Accommodations); (iii) no Seller or TGE Entity or any of their respective Affiliates or any of their respective partners, members or Representatives shall be required to pay any commitment or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document or incur any other agreement cost or document related expense or Liability (except for any cost or expense that is subject to the Financing (or alternative financing that Parent may raise expense reimbursement provision expressly set forth in Section 6.4(e)), in connection with the transactions contemplated by this Agreement) or Debt Financing; (iv) no such cooperation shall be required to the extent that any such action, in the good faith determination of any Seller or TGE Entity, would unreasonably interfere with the ongoing business or operations of any Seller or TGE Entity or any of their respective Affiliates; (v) no Seller or TGE Entity or any of their respective Affiliates or any of their respective partners, members or Representatives shall be required to deliver any information if it is not reasonably available to it or prepared in the ordinary course of its business; (vi) no Seller or TGE Entity or any of their respective Affiliates or any of their respective partners, members or Representatives shall be required to deliver any certificate, document, instrument or agreement if any representation and warranty or certification set forth therein would be inaccurate in any material respect or would reasonably be expected to result in personal liability; (vii) no such cooperation shall be required to the extent it would reasonably be expected to conflict with or violate any Law, or result in the contravention of, or result in a violation or breach of, or default under, any Contract of any Seller or this Agreement; (viii) other than the obligations of Sellers set forth in Section 6.4(a), no TGE Entity, nor any of their respective Affiliates or any of their respective partners, members or Representatives shall incur any other liability in connection Liability with respect to the Debt Financing; and (ix) no TGE Entity shall be a party to any agreement, certificate, document or instrument with respect to the Debt Financing (or any alternative financing that Parent except with respect to (w) the authorization letters set forth in Section 6.4(a)(iv); (x) customary control agreements (which may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except be in the event that such losses, damages, claims, costs or expenses arise out form of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(ban issuer’s acknowledgement) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified Class B Shares and with respect to such other debt or equity financing TE Units to the same extent that pledged by Acquirors as collateral under the Company would have been obligated to comply Debt Financing; (y) any documents necessary for the cooperation contemplated in Section 6.4(a)(vi) and (z) any Debt Financing Documents with respect to the Financingpurchase of any Existing Change of Control Notes described in Section 6.4(a)(vi)).
(c) Acquirors shall use their reasonable best efforts to take, providedor cause to be taken, that all actions and do, or cause to be done, all things, necessary, proper or advisable to arrange, consummate and obtain the Financing (to the extent contemplated by the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (ALetters to be funded on the Closing Date) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by no less favorable to Acquirors than the terms and conditions described in the Commitment Letter Letters. Such actions shall include, but not be limited to, using reasonable best efforts to: (any such agreements the “Definitive Financing Agreements”), (Bi) adversely impact the ability of Parent to enforce its rights against other parties to maintain in effect the Commitment Letter Letters, provided that Acquirors may replace or amend the Definitive Financing AgreementsDebt Commitment Papers (including adding new lenders, lead arrangers, bookrunners, syndication agents or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.similar entities
Appears in 3 contracts
Samples: Purchase Agreement (Tallgrass Holdings, LLC), Purchase Agreement (Tallgrass KC, LLC), Purchase Agreement (Kelso GP VIII, LLC)
Financing. (a) Parent covenants shall use its reasonable best efforts to take, or cause to be taken, all actions and agrees with to do, or cause to be done, all things necessary, proper or advisable to arrange the Company, Debt Financing on behalf of itself the terms and its Subsidiaries, conditions described in the Debt Financing Commitment (provided that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have fundsmay replace or amend the Debt Financing Commitment to add lenders, in lead arrangers, bookrunners, syndication agents or similar entities which had not executed the aggregateDebt Financing Commitment as of the date hereof, sufficient for or otherwise so long as the terms would not materially adversely impact the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby), including using reasonable best efforts to (i) maintain in effect the payment of Debt Financing Commitment, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, Debt Financing set forth in the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of Debt Financing Commitment (including by consummating the Reserved Company Common Stock, and the aggregate amount of cash to be paid equity financing pursuant to the terms of Section 1.9 in the Equity Financing Commitments), (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Financing Commitments or on other terms that would not adversely impact the ability or likelihood of Parent or Merger Sub to consummate the transactions contemplated hereby and (iv) consummate the Financing at or prior to the Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; provided, that such alternative financing shall be on terms and conditions materially no less favorable than those provided in the Debt Financing Commitment, or otherwise on terms and conditions acceptable to Parent. Parent shall give the Company RSU Awards, (ii) the funding prompt notice of any required refinancings material breach by any party to the Financing Commitments, of which Parent or repayments of Merger Sub becomes aware, or any existing indebtedness termination of the Financing Commitments. Parent shall keep the Company or Parent informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing and provide copies of all documents related to the Debt Financing (other than any fee letters and ancillary documents subject to confidentiality agreements) to the Company. The Company hereby consents to the use of its and its Subsidiaries’ names and logos in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Debt Financing.
(b) The Prior to the Closing, the Company shallshall provide to Parent and Merger Sub, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its the respective officers, employees and their respective Representativesadvisors, including legal, tax, regulatory legal and accounting, of the Company and its Subsidiaries to, provide to Parent and Merger Sub all cooperation reasonably requested by Parent with reasonable notice that is necessary in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries)Financing, including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other meetings, presentations, road shows, drafting sessionsdue diligence sessions and sessions with rating agencies, (ii) provide assistance in preparation of confidential information memoranda (including execution and delivery of a customary representation letter) and other materials to be used in connection with obtaining financing contemplated by the Debt Financing Commitment and all information (including financial information) customarily contained therein, (iii) provide assistance in the preparation for, and participate in, meetings, due diligence sessions (including accounting due diligence sessions) and sessions with the similar presentations to and with, among others, prospective lenders, investors and rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing enter into a loan agreement and related documents (including consenting to the use of the Company’s pledge 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 Subsidiariessecurity documents), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, 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 ancillary to the Financing as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters) and otherwise reasonably facilitate the pledging of collateral contemplated by the Debt Financing Commitment (including taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and to conduct the appraisals and field examinations relating thereto as customary contemplated by the Debt Financing Commitment and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the Financing, including any amendments of any foregoing) and (vi) provide the financial statements and other information necessary for the satisfaction of the Company’s obligations and conditions set forth in the Debt Financing Commitment within the time periods required thereby in order to permit a Closing Date on or its Subsidiaries’ existing credit agreementsprior to the Termination Date; provided, currency however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or interest hedging agreements; provided that no obligation of any operations of the Company or its Subsidiaries Subsidiaries. The Company shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash obtain pay-off letters, in form and marketable securities substance reasonably satisfactory to Parent, from holders of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director all indebtedness of the Company or any of its Subsidiaries as set forth in Section 7.2(g) of the Company Disclosure Letter and to ensure that each such pay-off letter will provide for the waiver of any notice provisions relating thereto. The Company and its Subsidiaries shall not pay or agree to pay any amounts in excess of all principal and accrued interest, if any, outstanding thereon as of the Closing in respect of such indebtedness in connection with obtaining such pay-off letters and waivers without the prior written consent of Parent (which shall not be unreasonably withheld or delayed). If this Agreement is terminated pursuant to Section 8.1 or 8.3(b) (but with respect to the Financing (Section 8.3(b) only for a Willful or alternative financing that Deliberate Breach by Parent may raise in connection with the transactions contemplated by this Agreementor Merger Sub) if such Representative believes such action would be inconsistent with their fiduciary dutiesParent shall, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that connection with such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representativescooperation.
(dc) In Notwithstanding anything to the event that contrary set forth in this Agreement or in the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the FinancingDebt Financing Commitment, the Company and Parent agree that Parent shall comply with have the right, in its covenants sole discretion, to determine the aggregate principal amount of funded debt to be incurred at Closing to finance the transactions contemplated hereby (the “Aggregate Closing Funded Debt”). If at any time prior to February 23, 2007, Parent determines, in Section 6.11(b) with respect to the Commitment Letter 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, providedits sole discretion, that the Commitment Letter as so amendedAggregate Closing Funded Debt shall be an aggregate principal amount less than $600,000,000, replacedParent shall notify the Company in writing of such determination, supplemented which notice shall specify the Aggregate Closing Funded Debt Parent has determined will be incurred at Closing. The Company shall have seventy-two (72) hours after receipt of such notice to advise Parent in writing whether or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse the Company elects to Parent, any existing) conditions precedent or contingencies to waive irrevocably the funding on the Closing Date of the Financing as condition set forth in Section 7.3(c) hereof by reason of such determination by Parent. If the Commitment Letter Company fails to respond to such notice or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any does not elect in writing to waive such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties condition prior to the Commitment Letter end of such seventy-two (72) hour period, Parent shall have the right, in its sole discretion, to terminate this Agreement pursuant to Section 8.4(i) at any time on or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply prior to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Termination Date. Parent or may exercise its Representatives pursuant to right under this Section 6.11 shall be kept confidential in accordance 6.12(c) to determine Aggregate Closing Funded Debt on one or more occasions so long as it complies with the Confidentiality Agreementits notice requirements each time it exercises such right.
Appears in 3 contracts
Samples: Merger Agreement (McJunkin Red Man Corp), Merger Agreement (McJunkin Red Man Holding Corp), Merger Agreement (Goldman Sachs Group Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to consummate and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing (provided that such requested cooperation does not unreasonably interfere with on the ongoing operations of terms and conditions described in the Company and its Subsidiaries)Commitment Letter, including using reasonable best efforts to (i) provide information relating to maintain in effect the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Commitment Letter, (ii) participate negotiate and cause senior management enter into definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter, (iii) satisfy on a timely basis all conditions applicable to participate Parent in a reasonable number the Commitment Letter that are within its control and comply with its obligations thereunder, and (iv) consummate the Financing no later than the Acceptance Time. Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of meetings with its rights under, the Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Financing Sources 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 Commitment Letter that amends the Financing and/or substitution of all or any portion of the Financing shall not prevent or impede or delay the consummation of the Offer, the Merger and the other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) transactions contemplated by this Agreement and sessions with shall be subject to Section 6.23. If any portion of the rating agenciesFinancing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, relating on the terms and conditions contemplated in the Commitment Letter and such portion is reasonably required to fund the completion cash portion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 Offer Price or the reputation or goodwill of the Company or any of Merger Consideration and all fees, expenses and other amounts contemplated to be paid by Parent pursuant to this Agreement, Parent shall use its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to arrange and obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise from alternative financial institutions in connection with an amount sufficient to consummate the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required Agreement upon conditions no less favorable to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse and the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except those in the event that Commitment Letter as promptly as practicable following the occurrence of such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representativesevent.
(db) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financingfinancing in accordance with Section 6.17(a), or if Parent substitutes other debt or equity financing for all or a portion of the Financing, in each case to the extent permitted pursuant to Section 6.17(a), each of Parent and the Company shall comply with its covenants in Section 6.11(b) set forth herein with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing to the same extent that Parent and the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Financing. (a) Parent covenants Until the Payment in Full of ABL Priority Debt, if any Grantor shall be subject to any Insolvency Proceeding and if ABL Agent consents to the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code (or similar Bankruptcy Law)) constituting ABL Priority Collateral (herein, “ABL Cash Collateral”), or consents to such Grantor obtaining financing from any of the ABL Claimholders, provided under Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law secured solely by a Lien on such ABL Priority Collateral (such financing, an “ABL DIP Financing”), and if such ABL Cash Collateral use or ABL DIP Financing, as applicable, meets the applicable ABL DIP Financing Conditions, then Term Loan Agent unconditionally agrees with that it will consent as a secured creditor to such ABL Cash Collateral use and will raise no objection as a secured creditor to such ABL DIP Financing, as applicable, and, if ABL DIP Financing is involved, Term Loan Agent will subordinate its Liens in the Company, on behalf ABL Priority Collateral (and in any other assets (other than Term Loan Priority Collateral) of itself and its Subsidiaries, the Grantors that may serve as collateral (including avoidance actions or the proceeds thereof) for such ABL DIP Financing) to the Liens securing such ABL DIP Financing so long as the Term Loan Agent is not prohibiting from seeking adequate protection as contemplated by Section 6.5. Term Loan Agent agrees that it shall take all action necessary to ensure that as not, and nor shall any of the Closing DateTerm Loan Claimholders, Parent and Merger Sub will have fundsdirectly or indirectly, in provide, offer to provide, or support any DIP Financing secured by a Lien on the aggregateABL Priority Collateral senior to or pari passu with the Liens securing the ABL Priority Debt. If, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger any ABL Cash Collateral use or the ABL DIP Financing, any Liens on the ABL Priority Collateral held by the ABL Claimholders to secure the ABL Debt are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “carve-out,” or fees owed to the United States Trustee, then the Liens on the ABL Priority Collateral of the Term Loan Claimholders securing the Term Loan Priority Debt shall also be subordinated to such interest or claim and (iii) shall remain subordinated to the payment Liens on the ABL Priority Collateral of all fees and expenses and other payment obligations required the ABL Claimholders consistent with this Agreement. The foregoing to the contrary notwithstanding but subject to Section 2.2, the Term Loan Claimholders may oppose or raise any objections to such use of ABL Cash Collateral or ABL DIP Financing that could be paid raised by a creditor of Grantors whose claims are not secured by Liens on ABL Priority Collateral, provided that such opposition or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financingobjections are not based on their status as secured creditors.
(b) The Company shallUntil the Payment in Full of Term Loan Priority Debt, if any Grantor shall cause its Subsidiaries to, be subject to any Insolvency Proceeding and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting if Term Loan Agent consents to the use of cash collateral (as such term is defined in Section 363(a) of the Company’s Bankruptcy Code (or similar Bankruptcy Law)) constituting Term Loan Priority Collateral (herein, “Term Loan Cash Collateral”), or consents to such Grantor obtaining financing from the Term Loan Claimholders provided under Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law secured by a Lien on such Term Loan Priority Collateral (such financing, a “Term Loan DIP Financing”), and if such Term Loan Cash Collateral use or Term Loan DIP Financing, as applicable, meets the applicable Term Loan DIP Financing Conditions, then ABL Agent unconditionally agrees that it will consent as a secured creditor to such Term Loan Cash Collateral use and will raise no objection as a secured creditor to such Term Loan DIP Financing, as applicable, and, if Term Loan DIP Financing is involved, ABL Agent will subordinate its Subsidiaries’ logos; Liens in the Term Loan Priority Collateral (and in any other assets other than ABL Priority Collateral of the Grantors that may serve as collateral (including avoidance actions or the proceeds thereof) for such Term Loan DIP Financing) to the Liens securing such Term Loan DIP Financing so long as the ABL Agent is not prohibiting from seeking adequate protection as contemplated by Section 6.5. ABL Agent agrees that it shall not, and nor shall any of the ABL Claimholders, directly or indirectly, provide, offer to provide, or support any DIP Financing secured by a Lien on the Term Loan Priority Collateral that is senior to or pari passu with the Liens securing the Term Loan Priority Debt. If, in connection with any Term Loan Cash Collateral use or Term Loan DIP Financing, any Liens on the Term Loan Priority Collateral held by the Term Loan Claimholders to secure the Term Loan Debt are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “carve-out,” or fees owed to the United States Trustee, then the Liens on the Term Loan Priority Collateral of the ABL Claimholders securing the ABL Debt shall also be subordinated to such interest or claim and shall remain subordinated to the Liens on the Term Loan Priority Collateral of the Term Loan Claimholders consistent with this Agreement. The foregoing to the contrary notwithstanding but subject to Section 2.2, the ABL Claimholders may oppose or raise any objections to use of Term Loan Cash Collateral or Term Loan DIP Financing that could be raised by a creditor of Grantors whose claims are not secured by Liens on Term Loan Priority Collateral, provided that such logos opposition or objections 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of based on their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing status as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiariessecured creditors.
(c) Notwithstanding the foregoingAll Liens granted to ABL Agent or Term Loan Agent in any Insolvency Proceeding, until the Effective Time occurswhether as adequate protection or otherwise, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request are intended by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger be and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply be subject to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such Lien priorities in Section 2.1 and the other debt or equity financing terms and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to conditions of this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Intercreditor Agreement (Quest Resource Holding Corp), Intercreditor Agreement (Quest Resource Holding Corp), Intercreditor Agreement (Quest Resource Holding Corp)
Financing. (a) Parent covenants The Purchaser shall use its best efforts to obtain the Financing on the terms and agrees with conditions described in or contemplated by the CompanyFinancing Commitments and shall not agree to any amendment or modification to, on behalf or any waiver of itself and its Subsidiariesany provision or remedy under, that it shall take all action necessary the Financing Commitments without the prior written consent of the Seller if such amendments, modifications or waivers would or would reasonably be expected to ensure that as (i) reduce the aggregate amount of the Financing below the amount required to consummate the Contemplated Transactions or amend or modify any conditions in a manner adverse to the Seller, (ii) impose new or additional conditions to the receipt of the Financing, (iii) prevent or materially delay the Closing Date, Parent and Merger Sub will have funds, or (iv) adversely impact in any material respect the aggregate, sufficient for (i) ability of Purchaser to enforce its rights against the payment other parties to any of the aggregate Cash Consideration and Financing Commitments or (v) adversely impact the Contemplated Transactions in any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financingmanner.
(b) Without limiting the generality of Section 5.8(a), the Purchaser shall use best efforts to (i) maintain in effect each of the Financing Commitments, (ii) satisfy all conditions and covenants applicable to the Purchaser in the Financing Commitments on or prior to the Closing and otherwise comply with its obligations thereunder, (iii) enforce its rights under the Financing Commitments and (iv) in the event that all conditions in the Financing Commitments, the Subscription Receipt Agreement (as defined in the Standby Purchase Agreement) and the Subscription Receipt Indenture (as defined in the Debt Subscription Agreement) have been satisfied, cause the persons providing the Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated by this Agreement.
(c) The Company shallPurchaser shall keep the Seller promptly informed of the status of its efforts to consummate the Financing and shall give Seller prompt written notice: (i) of any material breach or material default (or any event or circumstance that, with or without notice, lapse or time or both, would reasonably be expected to give rise to any material breach or material default) by any party to the Financing Commitments or definitive document related to the Financing of which Purchaser becomes aware; (ii) of the receipt of any written notice or other written communication from any party to the Financing Commitments with respect to any breach, default, termination or repudiation by any party to the Financing Commitments or any definitive document related to the Financing; and (iii) if the Purchaser becomes aware that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing; provided that Purchaser need not provide any information that is privileged.
(d) In the event any portion of the Financing becomes unavailable on the terms and conditions described in or contemplated by the Financing Commitments for any reason whatsoever, as promptly as reasonably practicable following the occurrence of such event, the Purchaser shall use best efforts to obtain alternative financing from alternative sources on terms and conditions substantially not less favourable, taken as a whole, to Purchaser (in the reasonable judgment of Purchaser) than those in the unavailable Financing Commitments and that is sufficient, when taken together with the Purchaser’s cash on hand and each of the Financing Commitments that remains available at the time to pay the Purchase Price and the fees and expenses payable by the Purchaser in connection with the Contemplated Transactions (the “Alternative Financing”). The Purchaser shall keep Seller promptly informed on a reasonably current basis of the status of its efforts to arrange any Alternative Financing. For the purposes of this Agreement, “Financing Commitments” shall be deemed to include any commitment letter (or similar agreement) with respect to any Alternative Financing arranged in compliance herewith.
(e) Prior to the Closing, the Seller shall use commercially reasonable efforts and shall cause its Subsidiaries tothe ELN Companies to use commercially reasonable efforts, and shall use its commercially reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, representatives to, provide to the Purchaser, at the Purchaser’s sole expense in respect of the Seller’s out-of-pocket costs, all reasonable cooperation reasonably requested by Parent the Purchaser that is required in connection with the Financing and any Alternative Financing, including (i) furnishing the Purchaser and its financing sources with (1) copies of the Financial Statements, together with, to the extent applicable, the report of the Seller’s auditors with respect thereto, and (2) all information relating to the ELN Companies and the Business, including the financial statements required by Applicable Laws for inclusion in any prospectus filed by PNCC with securities regulatory authorities in Canada in connection with the Financing, it being understood and agreed by the Parties that if any financial statements, other than the financial statements prepared by the Seller prior to the date hereof, are required to be prepared pursuant to Applicable Laws or otherwise in connection with the Financing, all out-of-pocket fees, costs and expenses relating to the preparation and delivery of such financial statements shall be borne exclusively by the Purchaser (information required to be delivered pursuant to this clause (i) being referred to as the “Required Information”); (ii) participating in a reasonable notice number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers, agents or underwriters for, and prospective lenders and investors of or in, the Financing and senior management and representatives, with appropriate seniority and expertise, of the Business, including the chief executive officer, chief financial officer and other senior executive officers of each of the ELN Companies), due diligence sessions, (iii) providing monthly income statements down to the EBITDA level (internal flash statement of income) for the Business and monthly accounts receivable balance of the Business, (iv) assisting with the preparation of customary materials for bank information memoranda, offering documents, prospectuses, private placement memoranda and similar documents required in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with including the ongoing operations delivery of the Company and its Subsidiaries), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the FinancingFinancing and the delivery of one or more customary representation letters), or other documents and instruments ancillary (v) using commercially reasonable effort to facilitate the Financing as may be reasonably requested by Parent as customary pledging of collateral in connection with the Financing, including executing and delivering any amendments of any of documents as may be reasonably requested by the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective TimePurchaser, (vi) use its providing access and information reasonably requested by the Purchaser to allow the Purchaser to undertake inventory appraisals, field audits, environmental assessments and obtain surveys and title insurance, (vii) providing to the sources of the Financing all documentation and other information required by regulatory authorities with respect to the Company under applicable “know your customer” and anti-money laundering rules and regulations, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada)), (viii) causing the taking of corporate actions (subject to the occurrence of the Closing) by the ELN Companies reasonably necessary to permit the completion of the Financing, (ix) facilitating the execution and delivery at the Closing (subject to the occurrence of the Closing) of definitive documents related to the Financing on the terms contemplated by the Financing Commitments, and (x) using commercially reasonable best efforts, as appropriate, efforts to have its independent cause accountants and legal counsel to provide their reasonable cooperation and assistance, (vii) use its including participating in a reasonable best efforts to permit any cash number of due diligence sessions and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closingdrafting sessions; provided, provided however, that the Company nothing herein shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Financing Sources that the public side versions of require such documents, if any, do not include material non-public information about the Company or its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, cooperation to the extent customary and reasonable and to the extent not it would interfere unreasonably interfering with the business operation of the Company Business; provided, further, that the Seller and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, ELN Companies shall (i) not be required to take any action described in this Section 5.8 that would become legally binding on any of them prior to the capacity of a director Closing. Neither the Seller nor any of the Company or ELN Companies shall be required to take any action that would subject any of its Subsidiaries with respect them to the Financing (any liability, to bear any third-party cost or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required expense or to pay any commitment or other similar fee, (iii) have any liability fee or any obligation under any credit agreement or any related document or make any other agreement or document related to the Financing payment (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all than reasonable and documented out-of-pocket costs and expenses actually incurred or any such costs, expenses, fees or payments to be reimbursed by the Company, Purchaser) or incur any of its Subsidiaries other liability or their respective Representatives provide or agree to provide any indemnity in connection with the cooperation Financing or any of the Company and its Subsidiaries contemplated by this Section 6.11foregoing, (ii) acknowledges and agrees that, except for obligations which is effective prior to the Closing. The Seller will ensure that none of the Company’s Subsidiaries from and after Required Information contains any misrepresentations (as defined in the Effective TimeSecurities Act (Ontario)) regarding the Seller, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, ELN Companies or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) Business. The Purchaser shall indemnify and hold harmless the Company, its Subsidiaries Seller and the ELN Companies and their respective Representatives 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 prior to the Effective Time in connection with the arrangement or completion of the Financing (including any action taken in accordance with this Section 5.8) and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), Required Information) except in the event that such liabilities, losses, damages, claims, costs costs, expenses, interest, awards, judgments or expenses arise penalties arose out of or result from the willful misconduct wilful misconduct, intentional misrepresentation or gross negligence of the CompanySeller, its Affiliates or any of its Subsidiaries or their respective Representatives.
(d) In officers, employees or representatives. The Purchaser shall, promptly upon request by the event that Seller, reimburse the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing Seller and the ELN Companies for all or a portion documented and reasonable out-of-pocket costs incurred by the Seller and the ELN Companies in connection with this Section 5.8(e). The Seller hereby consents to the reasonable use of the ELN Companies’ logos in connection with the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to provided that such other debt or equity financing to the same extent that the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, logos are used solely in a manner adverse that is not intended or reasonably likely to Parent, harm or disparage the ELN Companies in any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingrespect.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Purchase Agreement (Quebecor Media Inc), Purchase Agreement (Postmedia Network Canada Corp.), Purchase Agreement (Postmedia Network Canada Corp.)
Financing. (a) Parent covenants The Buyer shall, and agrees with shall cause the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as other members of the Closing DateBuyer Group to, Parent take, or cause to be taken, all actions and Merger Sub will have fundsdo, 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 the terms and conditions described in the aggregateDebt Financing Commitment, sufficient for including with respect to: (i) maintaining in effect the payment Debt Financing Commitment and complying with all obligations thereunder; (ii) negotiating, executing and delivering definitive agreements with respect to the Debt Financing (the “Debt Financing Agreements”) 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 Debt Financing Commitment applicable to 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 aggregate Cash Consideration 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 pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or consummation of the Financing, Transactions and (iii) the payment of to pay all related fees and expenses (“Alternative Debt Financing”) and other payment obligations required to be paid or satisfied by Parentobtain, Merger Sub and and, when obtained, to provide the Surviving Entity in connection Company with the Merger and the Financing.
(b) The Company shalla copy of, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the a new financing commitment that provides for such Alternative Debt Financing (provided that the “Alternative Debt Financing Commitment Letter”). For the purposes of this Agreement, the terms “Debt Commitment Letter” and “Fee Letter” shall be deemed to include any Alternative Debt Financing Commitment Letter or any fee letter referred to in such requested cooperation does not unreasonably interfere with Alternative Debt Financing Commitment Letter (which such fee letters, for the ongoing operations avoidance of the Company and its Subsidiaries)doubt, including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist may be redacted in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for same manner as the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(bFee Letters) with respect to the any Alternative Debt Financing arranged in compliance with this Section 9.7(a) (and any Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing to Fee Letter remaining in effect at the same extent that the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (Atime in question) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 term “Debt Financing” shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or include any such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingAlternative Debt Financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
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) Parent covenants Subject to the terms and agrees with conditions of this Agreement, in the Company, on behalf of itself period between the date hereof and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, shall use their respective reasonable best efforts to obtain the Financing on substantially the terms and conditions described in the aggregateCommitment Letters, sufficient for and use reasonable best efforts to: (i) maintain in effect the payment of Commitment Letters, (ii) negotiate definitive agreements with respect to the aggregate Cash Consideration Debt Financing in accordance with the terms and any other amounts required conditions contained in the Debt Commitment Letter (or on terms no less favorable to be paid pursuant Parent or Merger Sub than the terms and conditions in the Debt Commitment Letter) so that such agreements are effective no later than the Closing, (iii) satisfy prior to Article IIthe Closing all conditions precedent applicable to Parent and Merger Sub in the Commitment Letters that are within their control and that have not been waived by the Financing Sources, (iv) consummate the aggregate amount of cash Financing in accordance with the terms described in the Commitment Letters (or otherwise acceptable to be deposited pursuant Parent) at or prior to Section 1.7(b) in respect of the Reserved Company Common StockClosing, and (v) enforce the aggregate amount rights of cash Parent and Merger Sub under the Commitment Letters and cause the Financing Sources to be paid pursuant fund the Financing at or prior to Closing in accordance with the terms of the Commitment Letters, including by commencing a litigation proceeding against any breaching Debt Financing Source in which Parent and Merger Sub will use their reasonable best efforts to compel such breaching Debt Financing Source to provide its portion of such Debt Financing as required. Any and all fees and expenses in connection with the Commitment Letters and/or the Financing shall be paid by Parent or, if the Closing occurs, the Surviving Corporation.
(b) Without limiting the generality of Section 1.9 in respect of 5.07(a), Parent and Merger Sub shall give the Company RSU Awardsprompt written notice of (i) Parent or Merger Sub becoming aware of any material breach by any party to the Commitment Letters, (ii) the funding receipt of any required refinancings written notice or repayments other written communication from any Financing Source with respect to any termination or repudiation by any party to the Commitment Letters, (iii) Parent or Merger Sub becoming aware of any existing indebtedness material dispute or disagreement between or among any parties to any Commitment Letters that would reasonably result in a material breach under the Commitment Letters, (iv) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing on substantially the terms and conditions contemplated by the Commitment Letters and (v) any amendment, modification or replacement of the Commitment Letters with copies thereof. As soon as reasonably practicable, but in any event within three (3) days of the date the Company delivers to Parent and Merger Sub a written request, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to the circumstances in the foregoing sentence.
(c) Prior to the Closing, Parent and Merger Sub shall not agree to, or permit, any amendment or modification of, or waiver under, the Commitment Letters without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed) if such proposed amendment, modification, supplement, restatement or replacement (x) materially reduces the aggregate amount of the Debt Financing or the Equity Financing to be funded at Closing which has not otherwise been replaced by another binding financing source reasonably acceptable to the Company; provided, that the Company agrees that any increase in the amount of the Equity Financing by the Equity Financing Sources in at least the amount of any deficiency in the Debt Financing and a binding commitment on terms and conditions not materially less favorable to the Company’s interests than the existing Debt Commitment Letter from a reasonably acceptable alternative debt financing source in at least the amount of such deficiency, in each case, is acceptable, or (y) imposes new or additional conditions precedent to funding or otherwise expands, amends or modifies the then existing conditions precedent to funding to the Financing on the Closing, in each case in a manner that would reasonably be expected to (i) prevent, hinder or delay the Closing or (ii) adversely impact the ability of Parent and Merger Sub to enforce their rights against the other parties to the Commitment Letters or the ability of the Company to enforce its rights under the Equity Commitment Letters, in each of clauses (i) and (ii) in any material respect. Parent and Merger Sub shall not release or consent to the termination of the obligations of the Financing Sources under the Commitment Letters, except for assignments and replacements of an individual lender under the terms of or in connection with the syndication of the Debt Financing or as otherwise expressly contemplated by the Debt Commitment Letter, provided that such assignments or replacements would not prevent, delay or impair the availability of the Debt Financing under the Debt Commitment Letter or the consummation of the transactions contemplated by this Agreement.
(d) Other than as permitted in clauses (a)-(c) above, in the event that Parent or Merger or Sub become aware that any material portion of the Financing is reasonably likely not to be available at Closing under the Commitment Letters, Parent and Merger Sub shall (i) promptly notify in writing the Company of such circumstances and the reasons therefor and (ii) use their respective reasonable best efforts to obtain alternative financing from alternative financial institutions reasonably acceptable to the Company in an amount sufficient to consummate the transactions contemplated by this Agreement upon conditions not materially less favorable to the Company’s interests than the existing Commitment Letters as promptly as practicable following the occurrence of such event (and in any event no later than the Closing). Parent shall furnish the Company with complete, correct and executed copies of any material definitive agreements with respect to the Financing (including any alternative financing agreement) promptly upon their execution and shall keep the Company reasonably informed of the status of its efforts to arrange and consummate the Financing.
(e) In the period between the date hereof and the Closing Date, upon the request of Parent and Merger Sub, the Company shall and shall cause its Subsidiaries and its and their respective officers, directors, managers, employees, accountants, consultants, legal counsel, agents and other representatives, at Parent’s sole expense, to cooperate reasonably in connection with the arrangement and obtaining of the Financing, and including (iiii) the payment of all fees and expenses and other payment obligations required providing to be paid or satisfied by Parent, Merger Sub and their Financing Sources from time to time all financial and other pertinent information regarding the Surviving Entity in connection with the Merger Company and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation industry reasonably requested by Parent with reasonable notice them (including information to be used in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with preparation of one or more information packages regarding the ongoing operations business, operations, financial projections and prospects of the Company and its Subsidiaries), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion such Debt Financing or reasonably necessary for the syndication of the Debt Financing by the Debt Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the CompanySources), (ii) participate and cause senior management to participate participating in a reasonable number of meetings with Financing Sources and other meetings, presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) with prospective lenders and sessions with rating agencies in connection with the rating agenciesDebt Financing, in each case, relating to the completion including direct contact between senior management (with appropriate seniority and expertise) and representatives (including accountants) of the Financing by Company and its Subsidiaries, on the one hand, and the Debt Financing Sources, potential lenders and investors for the Debt Financing, on the other hand, (iii) assist in furnishing all financial statements reasonably required by the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for Commitment Letters within the Financing, and (B) materials for rating agency presentationstime periods specified therein, (iv) cooperate assisting with the marketing efforts for any component preparation and entering into as of the Effective Time of definitive agreements with respect to the Debt Financing (including consenting to the use review as of the Company’s any disclosure schedules related thereto for completeness 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 accuracy) 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments amendment of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided , or other agreements, in each case, on terms satisfactory to Parent and that no obligation are reasonably requested by Parent in connection with the Debt Financing (provided, however, that prior to the Effective Time the Company shall only be required to amend any such agreement if the Guarantor shall provide the Company with indemnification satisfactory to the Company for the effects of any such amendment), (v) assisting with the preparation of materials for rating agency presentations, offering and syndication documents (including public and private information memoranda and lender presentations), business projections and similar marketing documents required in connection with the Debt Financing (provided, that any such presentations and similar documents shall contain disclosure and pro forma financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor and Parent shall be solely responsible for the preparation of any such pro forma financial statements contained therein, provided, that, the Company shall use its reasonable best efforts to cause its independent auditors to provide its reasonable cooperation and assistance in connection with the preparation of such pro forma financials) and other materials to be used in connection with obtaining the Debt Financing and all documentation and other information required by the Debt Financing Sources for compliance with applicable “know your customer” and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, (vi) cooperating reasonably with the Financing Sources’ due diligence, (vii) executing customary authorization and management representation letters, (viii) reasonably cooperating in satisfying the conditions precedent set forth in the Commitment Letters or any definitive document relating to the Financing (to the extent the satisfaction of such condition requires the cooperation of, and is within the control of, the Company and its Subsidiaries), including but not limited to (A) permitting, subject to appropriate confidentiality arrangements, the prospective lenders and investors to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establishing bank and other accounts and security arrangements in connection with the foregoing, (ix) issuing customary representation letters to auditors and using reasonable best efforts to obtain legal opinions, surveys, title insurance, accountants’ comfort letters and consents to the use of accountants’ audit reports relating to the Company, (x) executing and delivering, as of the Effective Time, any guarantees, pledge and security documents, other definitive financing documents, or other certificates or documents contemplated by the Debt Commitment Letter and hedging agreements as may be reasonably requested by Parent or Merger Sub (including a customary certificate of the chief financial officer of the Company with respect to solvency matters and otherwise reasonably facilitating the pledging of collateral or its Subsidiaries shall provision of guarantees in connection with the Debt Financing), (xi) using reasonable best efforts to obtain such consents, approvals, authorizations and instruments which may reasonably be effective under credit requested by Parent or Merger Sub to permit the consummation of the Debt Financing, including, but not limited to, collateral arrangements, including obtaining payoff letters, releases, terminations, landlord waivers and access agreements, loan documents or currency or interest hedging arrangements or amendments waivers, consents, estoppels and approvals as may be required in connection therewith, (xii) using reasonable best efforts to such ensure that the Financing Sources benefit from the existing arrangements lending relationships of the Company and its Subsidiaries until the Effective TimeSubsidiaries, (vixiii) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use using its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or and Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representationsEffective Time, and (ixxiv) cooperate reasonably with as of the Effective Time, taking all corporate actions necessary to authorize the consummation of the Financing Sources’ due diligenceand to permit the proceeds thereof to be made available to the Surviving Corporation immediately upon the Effective Time; provided that, notwithstanding anything to the contrary contained in this Agreement (including this Section 5.07), nothing in this Agreement shall require any cooperation to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of that it would require the Company or any of its Subsidiaries with respect or representatives, as applicable, to the Financing (waive or alternative financing that Parent may raise in connection with the transactions contemplated by amend any terms of this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required Agreement or agree to pay any commitment or other similar fee, (iii) have fees or reimburse 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this AgreementTime. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public information or otherwise other confidential information regarding the Company obtained by Parent or its Representatives provided pursuant to this Section 6.11 5.07 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and its Affiliates shall be permitted to disclose such information to potential syndicate members during syndication, subject to customary confidentiality undertakings by such potential syndicate members. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to harm or disparage the Company, its Subsidiaries or their marks and on such other customary terms and conditions as the Company may reasonably impose.
(f) Parent shall, if the Closing has not occurred, promptly upon request by the Company or promptly after termination of this Agreement (other than a termination pursuant to Section 7.01(c) or Section 7.01(d)(ii)), reimburse the Company for all documented reasonable out-of-pocket expenses and costs incurred in connection with the performance by the Company or other Persons obligated under this Section 5.07 of its obligations under this Section 5.07.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Financing. Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Equity Financing contemplated by the Equity Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Equity Commitment Letter, including (a) Parent covenants maintaining in full force and agrees effect the Equity Commitment Letter in accordance with the Companyterms thereof and complying with its obligations thereunder and (b) satisfying on a timely basis all conditions to the funding of the Equity Financing set forth in the Equity Commitment Letter, on behalf of itself and its Subsidiariesif any, that it shall take all action necessary to ensure that as of are within Parent’s or Merger Sub’s control, in each case, no later than at the Closing Date(excluding conditions that, by their terms, cannot be satisfied until the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions at the Closing). In the event that all conditions contained in the Equity Commitment Letter have been satisfied, Parent and Merger Sub will have fundsshall use commercially reasonable efforts to cause Parent Sponsor to comply with its obligations thereunder, including to fund the Equity Financing. Parent and Merger Sub shall keep the Company informed in the aggregate, sufficient for (i) the payment reasonable detail of the aggregate Cash Consideration status of its efforts to arrange the Equity Financing and any other amounts required to be paid pursuant to Article II, financing upon the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations written request of the Company and its Subsidiaries), including using reasonable best efforts to shall give the Company prompt written notice of (i) provide information relating any breach by any party to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion Equity Commitment Letter of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for any material provision which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period Parent or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), Merger Sub has become aware or (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentationsParent’s or Merger Sub’s good faith belief, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting reason, that it may no longer be able 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 obtain all or any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, Equity Financing contemplated by the Company shall comply with its covenants in Section 6.11(b) with respect to the Equity Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingdescribed therein.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Vapotherm Inc), Merger Agreement (Vapotherm Inc), Merger Agreement (Army Joseph)
Financing. (a) Each of Purchaser and Parent covenants shall use their respective reasonable best efforts to take, or cause to be taken, all actions and agrees with to do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as proceeds of the Closing DateDebt Financing, Parent and Merger Sub will have funds, in the aggregate, sufficient for including using their respective reasonable best efforts to: (i) assert (other than through litigation) its rights under the payment Debt Commitment Letter in the event of a breach thereof by the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Debt Financing Sources (as defined in Section 1.7(b7.3(h)) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awardsthereunder, (ii) enter into Financing Agreements with respect thereto, (iii) satisfy, or cause their Representatives to satisfy, on a timely basis all conditions applicable to, and within the funding of any required refinancings control of, Parent, Purchaser or repayments of any existing indebtedness of the Company or Parent their respective Representatives in connection with the Merger or the Financingsuch definitive agreements, and (iiiiv) upon the payment satisfaction of all fees and expenses and other payment obligations the Purchaser’s obligation to consummate the Offer or the Merger, as applicable, consummate the Debt Financing, at the Offer Closing (with respect to amounts required to be paid or satisfied by Parent, Merger Sub consummate the Offer) and the Surviving Entity Merger Closing (with respect to amounts required to consummate the Merger); provided that under no circumstances shall Parent or Purchaser be required to commence, participate in connection or pursue any Legal Proceeding against or involving any of Financing Source or any other Person that has committed to provide any portion of, or otherwise with respect to, the Merger and the Debt Financing.
(b) The Company shall, Neither Purchaser nor Parent shall cause its Subsidiaries agree to any amendments or modifications to, and shall use its reasonable best efforts to cause each of its and their respective Representativesor grant any waivers of, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with any condition or other provision or remedy under the Debt Commitment Letter or Financing (provided that such requested cooperation does not unreasonably interfere with Agreements without the ongoing operations prior written consent of the Company and its Subsidiaries(which may be granted or withheld in the Company’s sole discretion), including using reasonable best efforts to if such amendments, modifications or waivers would (i) provide information relating reduce the aggregate amount of aggregate cash proceeds available from the Debt Financing below the amount (after taking into consideration the funds otherwise expected to the Company and its Subsidiaries be available to the Financing Sources Parent) that is reasonably available required to consummate the Company Offer, the Merger and is customary for completion of the Financing other transactions contemplated by this Agreement and to repay or refinance the Financing Sources debt contemplated to be replaced under the Debt Commitment Letter (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availableany fees, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements premiums and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Companyexpenses payable in connection therewith), or (ii) participate and cause senior management to participate impose new or additional conditions precedent or otherwise expands, amends or modifies any of the conditions precedent in a reasonable number of meetings with Financing Sources and other presentationsmanner adverse to Purchaser, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with Parent or the rating agenciesCompany, in each case, relating solely to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of extent that such amendment or modification would be reasonably likely to (A) any customary offering documentsprevent or delay or impair the ability of Purchaser and Parent to consummate the Offer, bank information memorandathe Merger and the other Transactions, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, adversely impact the ability of Purchaser or Parent to enforce its rights or remedies against the other parties to the Debt Commitment Letter or Financing Agreements or (ivC) cooperate with make the marketing efforts for any component timely funding of the Debt Financing (including consenting to the use or satisfaction of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended conditions precedent to or reasonably obtaining the Debt Financing any less 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiariesoccur.
(c) Notwithstanding anything to the foregoingcontrary contained in this Agreement, until Parent and Purchaser shall have the Effective Time occurs, neither right to substitute other debt or equity financing for all or any portion of the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required Debt Financing contemplated by the Debt Commitment Letter from the same and/or alternative Financing Sources so long as such substitute financing is subject to take any action funding conditions that are not less favorable to Parent and Purchaser than the funding conditions set forth in the capacity Debt Commitment Letter and so long as such substitute financing would not adversely impact the ability of Parent and Purchaser to consummate the Transactions on a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representativestimely basis.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a any portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Debt Financing as set forth becomes unavailable in the manner or from the sources contemplated in the Debt Commitment Letter or Financing Agreements, (i) Parent shall promptly (but in any event within one (1) Business Day) so notify the Company in writing and (ii) Purchaser and Parent shall use their respective commercially reasonable efforts to arrange and obtain, and to negotiate and enter into definitive agreements with respect thereto on terms and conditions contemplated by to, alternative financing from the Commitment Letter same or alternative financial institutions in an amount (any such agreements after taking into consideration the “Definitive Financing Agreements”), (Bfunds otherwise expected to be available to Parent) adversely impact the ability of Parent to enforce its rights against other parties equal to the Commitment Letter or lesser of (i) an aggregate amount sufficient to consummate the Definitive Financing AgreementsOffer, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement, and (ii) the amount of financing that was contemplated by the Debt Commitment Letter (including any fees, premiums and expenses payable in connection therewith) on the date of this Agreement as promptly as practicable following the occurrence of such event; provided, however, that neither Purchaser nor Parent shall be required to obtain, negotiate or enter into any Financing Agreements with respect to any Debt Financing on terms and conditions that are materially less favorable, in the aggregate, to Purchaser and Parent than those in the Debt Commitment Letter (taking into account any flex provisions). This The definitive agreements entered into in connection with any Debt Financing or Alternative Financing, as applicable, are referred to in this Agreement, collectively, as the “Financing Agreements.” In the event any alternative or substitute financing (an “Alternative Financing”) is obtained in accordance herewith, (A) any reference in this Agreement to the “Debt Financing” shall mean the financing contemplated by such Alternative Financing as permitted to be modified pursuant to this Section 6.11 5.12, and (B) if a new financing commitment letter is entered into in connection with such Alternative Financing (the “New Commitment Letter”), references in this Agreement to the Debt Commitment Letter (except for purposes of Section 4.9) shall be deemed to apply to include the New Commitment Letter as so amendedand any other Debt Commitment Letter(s) that are not superseded by the New Commitment Letter at the time in question. Without first obtaining the Company’s prior written consent (which shall not be unreasonably withheld, replacedconditioned or delayed), supplemented neither Purchaser nor Parent shall directly or otherwise modified and/or such other debt indirectly take any action that would, or equity financing and references would be reasonably expected to, adversely impact the ability of Parent to satisfy the Financing shall be deemed to refer instead to such alternative financingProceeds Condition.
(e) All non-public or otherwise confidential information regarding Parent shall (i) furnish the Company obtained by Parent complete, correct and executed copies of the Financing Agreements or its Representatives pursuant to this Section 6.11 shall be kept confidential any alternative financing agreement entered into in accordance with this Section 5.12 promptly upon their execution, (ii) give the Confidentiality AgreementCompany prompt written notice of any breach or threatened breach of which either Purchaser or Parent is or becomes aware by any party of any of the Debt Commitment Letter or the Financing Agreements of which Purchaser or Parent is or becomes aware or any termination or threatened termination thereof, and (iii) otherwise keep the Company reasonably informed in a timely manner of the status of its efforts to arrange the Debt Financing.
Appears in 3 contracts
Samples: Merger Agreement (Hyperion Therapeutics Inc), Merger Agreement (Horizon Pharma PLC), Merger Agreement (Hyperion Therapeutics Inc)
Financing. (a) Parent covenants Subject to the terms and agrees with the Companyconditions of this Agreement, on behalf each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, shall use its reasonable best efforts to (i) cause the Lender to fund the Debt Financing on the terms and conditions described in the aggregateFacility Agreement at or prior to the Effective Time, sufficient (ii) maintain in effect the Financing Commitments until the Transactions are consummated, (iii) satisfy on a timely basis all conditions precedent to funding of the Debt Financing applicable to Parent and Merger Sub in the Facility Agreement that are within its control, (iv) enforce its rights under the Rollover Agreement, Additional Rollover Agreements, the Equity Commitment Letter and the Facility Agreement to the extent necessary to fund the Merger Consideration, and (v) cause the Sponsor to fund the Equity Financing at or prior to the Effective Time; provided, that (i) Parent and Merger Sub may amend or modify the Financing Commitments and/or elect to replace all or any portion thereof; or (ii) in the event that any portion of the Debt Financing becomes unavailable other than due to the material breach of representations and warranties or covenants of the Company or a failure of a condition to be satisfied by the Company after providing notice to the Company and a reasonable opportunity to cure, Parent shall notify the Company and use its reasonable best efforts to arrange alternative financing (the “Alternative Financing”) from alternative sources in an amount sufficient, when added to the portion of the Financing that is available, for Merger Sub and the Surviving Corporation to pay (i) the payment of the aggregate Cash Consideration Exchange Fund, and (ii) any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or consummation of the FinancingTransactions upon the terms and conditions contemplated hereby. Parent shall deliver to the Company as soon as practicable after such execution, a true and (iii) complete copy of the payment of all fees and expenses and other payment obligations required definitive agreement pursuant to which the Alternative Financing is committed to be paid or satisfied by Parentprovided (the “Alternative Facility Agreement”) as soon as practicable after execution thereof. To the extent applicable and subject to the terms and conditions of this Agreement, Parent and Merger Sub shall use their respective reasonable best efforts to obtain the Alternative Financing on the terms and conditions described in the Surviving Entity in connection with the Alternative Facility Agreement (including any “market flex” provision). Each of Parent and Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Sub shall use its reasonable best efforts to cause (i) maintain in effect the Alternative Facility Agreement, (ii) satisfy on a timely basis all conditions in the Alternative Financing Agreement within its control, and (iii) enforce its rights under the Alternative Facility Agreement to the extent necessary to fund the Merger Consideration. Parent shall keep the Company reasonably informed on a reasonably current basis of the status of Parent’s efforts to arrange any Alternative Financing.
(b) Subject to the terms and conditions of this Agreement, each of its Parent and their respective Representatives, including legal, tax, regulatory and accounting, Merger Sub shall not permit any amendment or modification to be made to, provide all cooperation or any waiver of, any provision under, the Financing Commitments, or, if applicable, the Alternative Facility Agreement if such amendment or modification or waiver (i) reduces or would reduce the aggregate amount of the Financing and the Alternative Financing or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing or the Alternative Financing, or otherwise expands, amends or modifies any other provisions of the Financing Commitments or, if applicable, the Alternative Facility Agreement in a manner that would reasonably requested by be expected to (x) delay or prevent or make less likely the funding of the Financing or the Alternative Financing at the Effective Time or (y) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Financing Commitments and, if applicable, the Alternative Facility Agreement, in each of clauses (x) and (y) in any material respect. Parent with reasonable notice shall not consent to the termination or release of the obligations of the Lender, the Sponsor or any of the Rollover Shareholders under the Financing Commitments (or the Alternative Facility Agreement, if applicable), except for assignments and replacements of an individual lender in connection with the syndication of the Debt Financing or Alterative Financing that are permitted thereunder. Parent shall give the Company notice promptly (provided that such i) upon becoming aware of any breach of any material provisions of, or termination by any party to, the Financing Commitments and, if applicable, the Alternative Facility Agreement.
(c) The Company shall, and shall cause each of the Company’s Subsidiaries and each of their respective Representatives to, provide to Parent and Merger Sub all reasonable cooperation requested cooperation does not unreasonably interfere by Parent or Merger Sub or their respective Representatives in connection with the ongoing operations Debt Financing and/or the Alternative Financing and the Transactions, including, without limitation, (i) participating in meetings, presentations, road shows, due diligence sessions, drafting sessions, sessions with rating agencies and other meetings, including making the Company’s executive officers reasonably available to assist directly with the Lender or the Sponsor, (ii) assisting with the preparation of such materials (which shall include, but shall not be limited to bank information memoranda and information for rating agency presentations) as the Company and Parent or its Subsidiaries)Representatives may reasonably request in connection with the Debt Financing and/or Alternative Financing, including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing)Debt Financing and/or the Alternative Financing and delivery of one or more customary representation letters, (iii) executing and delivering any pledge or security documents, currency or interest hedging arrangements or other definitive financing documents and instruments ancillary to the Financing conditioned upon Closing or other certificates, legal opinions or documents as may be reasonably requested by Parent as customary or Merger Sub (including a certificate of the chief financial officer of the Company or any borrowing Subsidiary of the Company with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing and/or the Alternative Financing) or otherwise facilitating the pledging of collateral (including delivery of pay-off letters and other cooperation in connection with the Financingpayoff of existing Indebtedness and the release of all related Encumbrances), including any amendments of any of the Company’s or (iv) furnishing Merger Sub and its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of Debt Financing and/or Alternative Financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries until as may be reasonably requested by Parent and its Debt Financing and/or Alternative Financing sources, including, without limitation, all financial statements and projections and other pertinent information required under the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation Facility Agreement or the Alternative Facility Agreement and assistance, (vii) use its reasonable best efforts to permit any cash all financial statements and marketable securities of financial and non-financial information regarding the Company and its Subsidiaries to as may be made available to reasonably requested by Parent and of the type and form customary for the placement, arrangement and/or Merger Sub at syndication of loans or distribution of debt contemplated by the Closing, provided that Debt Financing and/or the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1Alternative Financing, (viiiv) provide customary authorization letters cooperating with advisors, consultants and accountants of Parent or its Debt Financing and/or Alternative Financing sources with respect to the Financing Sources authorizing the distribution conduct of information to prospective lenders and containing a representation to the Financing Sources that the public side versions of such documentsany examination, if any, do not include material non-public information about the Company appraisal or its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, financial condition or any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director assets or liabilities of the Company or any of its Subsidiaries, including for the purpose of establishing collateral eligibility and values, (vi) using reasonable best efforts to obtain accountants’ comfort letters, consents, legal opinions, surveys, title insurance and other documentation and items relating to the Debt Financing and/or Alternative Financing as reasonably requested by Parent or Merger Sub and to arrange discussions among Parent and its Debt Financing sources and/or Alternative Financing Sources with other parties to the Material Contracts, Real Property Lease and Encumbrances, (vii) providing monthly financial statements (excluding footnotes) to the extent the Company customarily prepares such financial statements within the time frame such statements are prepared, (viii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing and/or the Alternative Financing to evaluate the Company and the Company’s Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, (vii) entering into one or more credit or other agreements conditioned upon Closing and on terms satisfactory to Parent and Merger Sub in connection with the Debt Financing and/or the Alternative Financing immediately prior to the Effective Time, (viii) at the Company’s option, taking or appointing a representative of Parent to take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent or Merger Sub to permit the consummation of the Financing and the direct borrowing or incurrence of all of the proceeds of the Financing, including any high yield debt financing, by the Surviving Corporation or its Subsidiaries following the Effective Time, (xi) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or the Alternative Financing, including without limitations the execution and delivery of any other certificates, instruments or documents, and to permit the proceeds thereof, together with cash at the Company and its Subsidiaries, to be made available on the Closing Date to consummate the Transactions, and (xii) furnishing Parent, Merger Sub, their respective Representatives and sources of Debt Financing and/or Alternative Financing as promptly as practicable with all documentation and other information reasonably required by Governmental Authorities with respect to the Debt Financing and/or the Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations; provided, that (or alternative financing that Parent may raise in connection x) any such requested cooperation does not materially and unreasonably interfere with the transactions contemplated by this Agreementongoing operations of the Company and its Subsidiaries or (y) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) the Company shall not be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to fee incur any other liability in connection with the Financing (prior to the Effective Time. Other than as expressly contemplated by this Agreement, 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, incur any liability to any financing provider or other third party under any alternative financing that Parent or Merger Sub may raise in connection with the transactions contemplated by this Agreement). Parent Transactions.
(id) shall promptly, upon request by No later than five Business Days prior to the Company, reimburse the Company for Closing Date and at all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after times until the Effective Time, the CompanyCompany shall cause (i) one or more of its wholly-owned PRC Subsidiaries established or incorporated in the PRC (“PRC Subsidiaries”) to transfer and deposit cash into one or more specified accounts (each, its an “Onshore Bank Designated Account”) held with the Onshore Account Branch referred to in the Facility Agreement (or such other bank or financial institution approved by the Lender as notified by Parent) and standing to the credit of such PRC Subsidiaries and their respective Representatives (ii) one or more of its wholly-owned Subsidiaries that are not established or incorporated in the PRC (“Offshore Subsidiaries”) to transfer and deposit cash into one or more specified accounts (each, an “Offshore Bank Designated Account”) held with the Offshore Account Bank referred to in the Facility Agreement and standing to the credit of such Offshore Subsidiaries, and shall do or cause to be done all such other things necessary to ensure, in each of the foregoing cases, such that the aggregate balance standing to the credit of the Onshore Bank Designated Accounts and the Offshore Bank Designated Accounts is not have any responsibility for, or incur any liability to any Person under, the Financing less than RMB100,000,000 (or alternative financing that Parent may raise its equivalent, as determined using the conversion rate described in connection with paragraph (e) of Clause 1.2 (Construction) of the transactions contemplated by this Facility Agreement), and (iii) 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 any of them prior to until the Effective Time in connection with (such amount balance standing to the arrangement credit of the Financing Onshore Bank Designated Accounts and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by Offshore Bank Designated Accounts meeting the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out requirements of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financingthis provision, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing AgreementsOnshore Required Balance”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Le Gaga Holdings LTD), Merger Agreement (Chiu Na Lai)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, First Merger Sub and the Surviving Entity in connection with the Second Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Sub shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesdo, including legalor cause to be done, tax, regulatory all things necessary or advisable to arrange and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing on the terms and conditions described in or contemplated by the Financing Commitments prior to when the conditions to the Mergers set forth in Article VIII (provided other than those conditions that such requested cooperation does not unreasonably interfere with by their terms must be satisfied at the ongoing operations of the Company and its Subsidiaries)Closing) are satisfied, including using reasonable best efforts to (i) provide information relating maintain in effect the Financing Commitments; (ii) satisfy on a timely basis all conditions and covenants applicable to Parent, First Merger Sub and Second Merger Sub in the Company Financing Commitments and otherwise comply with its Subsidiaries obligations in each case thereunder; (iii) enter into definitive agreements with respect to the Financing Sources Commitments on the terms and conditions (including the “market flex” provisions) contemplated thereby; (iv) in the event that is reasonably available all conditions in the Financing Commitments have been satisfied, cause the Persons providing Financing under the Financing Commitments to fund the Financing and consummate the Financing contemplated by such Financing Commitments on or prior to the Company date the Closing is required to occur pursuant to Section 2.02; and is customary for completion (v) enforce its rights under the Financing Commitments, except, in the case of clauses (i) through (v) above, to the extent (and solely to the extent) Parent or one or more of its Subsidiaries has issued in one or more offerings any debt or equity securities in lieu of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period on or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding or otherwise will have sufficient cash at the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agenciesClosing, in each casecase in an amount such that Parent, relating First Merger Sub, Second Merger Sub, the Surviving Corporation and the Surviving Entity will be able to the completion satisfy all of the Financing by payment obligations of Parent, First Merger Sub, Second Merger Sub, the Financing Sources, (iii) assist in Surviving Corporation and the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary Surviving Entity contemplated hereunder in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) . Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, in no event shall (i) Parent be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to pursue litigation against the Financing Sources in respect of this clause (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreementa) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representativesotherwise.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Grail, LLC), Merger Agreement (Grail, LLC), Merger Agreement (Illumina, Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions, and to cause, or cause to be done, all things, in each of its case reasonably necessary, proper or advisable to obtain and their respective Representativesconsummate the Financing as described in the Highly Confident Letter and, if applicable, the Equity Financing Letter, including legalusing its reasonable best efforts to (i) negotiate in good faith and enter into definitive agreements with respect to the Loan Financing as soon as reasonably practicable and (A) on the terms and subject to the conditions reflected in the Highly Confident Letter, taxor (B) on such other terms that are acceptable in good faith to the Purchaser; (ii) if required to obtain sufficient funds to complete the transactions contemplated hereby, regulatory to negotiate in good faith and accountingenter into one or more equity commitment agreements with respect to the Equity Financing on terms acceptable in good faith to the Purchaser; (iii) satisfy on a timely basis all conditions in the definitive agreements relating to the Loan Financing and, to, provide all cooperation if applicable the Equity Financing (the “Financing Definitive Agreements”) and comply with the obligations thereunder applicable to the Purchaser and within its control; (iv) obtain such Third-Party consents as may be reasonably requested required to be obtained by Parent with reasonable notice the Purchaser in connection with the Financing, subject to the Seller’s compliance with Section 6.16(b) where applicable; and (v) upon the satisfaction or waiver of the conditions in the Financing Definitive Agreements, consummate the Financing on or prior to the Closing; provided, however, that, notwithstanding anything to the contrary contained herein, (1) the Purchaser shall have the right to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources on terms and conditions reasonably acceptable to the Purchaser in good faith; and (2) the Purchaser shall not be required to, and the Purchaser shall not be required to cause any other Person to, commence, participate in, pursue or defend any Action against or involving any of the Purchaser’s lenders or investors or other Persons that have or may have agreed to provide any portion of, or otherwise with respect to, the Financing. The Purchaser shall provide the Seller with information on a current basis with respect to (i) the status of its negotiations with respect to definitive agreements relating to the Financing, (ii) satisfaction of all conditions in the definitive agreements relating to the Financing and (iii) such other matters as the Seller may reasonably request relating to the status of the Financing. The Purchaser shall provide the Seller with an executed copy of each definitive credit agreement or equity commitment agreement relating to the Financing promptly following execution thereof in the forms as will be publicly disclosed, together with any other documents or attachments thereto to the extent they contain any material terms or conditions to the Financing not otherwise reflected in the definitive agreement.
(b) During the period beginning on the date hereof and ending on the Closing Date, upon the request of the Purchaser, the Seller shall, and shall cause its Affiliates and Representatives to, cooperate reasonably with the Purchaser in connection with the Purchaser’s financing of the transactions contemplated hereby, including by (i) providing customary information reasonably requested by the Purchaser relating to such financing; and (ii) making commercially reasonable efforts to obtain consents from Third Parties as reasonably necessary and taking such other actions as may reasonably be requested to facilitate the granting of a security interest to the Purchaser’s lenders in the collateral as contemplated by the Loan Financing on the Closing Date; provided that (i) nothing herein shall require such requested cooperation does not from the Seller or any of its Subsidiaries to the extent that it would unreasonably interfere with the ongoing operations of the Company Seller and its Subsidiaries), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with neither the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 Seller nor any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreementsrequired to expend any funds (other than incidental amounts) or make any payment to any Third Party in connection with its compliance with this Section 6.16(b).
(c) Purchaser shall, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements promptly upon request of the Company Seller, reimburse the Seller (and its Subsidiaries until the Effective TimeAffiliates and Representatives, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of including the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the CompanySeller, any of and its Subsidiaries or their respective Affiliates and Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) such cooperation. The Purchaser shall indemnify and hold harmless the Company, Seller and its Subsidiaries Affiliates and their respective Representatives from for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties Losses suffered or incurred by any of them prior to the Effective Time in connection with the arrangement of the Financing and except to the extent such Losses arise from any information utilized in connection therewith (other than historical information relating to breach or noncompliance by the Seller, the Company or its Subsidiaries and information provided by of any covenant or agreement in this Agreement, or the Company, gross negligence or willful misconduct of the Seller or of the Company or its Subsidiaries or their Representatives), except in prior to the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective RepresentativesClosing.
(d) In Any information provided to the event that the Commitment Letter is amended, replaced, supplemented Purchaser or its Representatives in accordance with this Section 6.16 or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company pursuant to this Agreement shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated be held by the Commitment Letter (any such agreements the “Definitive Financing Agreements”)Purchaser and its Representatives in accordance with, (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply provided under, and shall be subject to the Commitment Letter as so amendedterms of, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Vectren Corp), Stock Purchase Agreement (Vectren Corp), Stock Purchase Agreement (Hallador Energy Co)
Financing. (a) Parent covenants The Buyer Parties shall use their commercially reasonable efforts to take, or cause to be taken, all actions and agrees with the Companyto do, on behalf of itself and its Subsidiariesor cause to be done, that it shall take all action things necessary to ensure that as of arrange the Closing Date, Parent Debt Refinancing on the terms and Merger Sub will have funds, conditions described in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries)Refinancing Commitment Letter, including using their commercially reasonable best efforts to (i) provide information relating to maintain in effect the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), Refinancing Commitment Letter; (ii) participate and cause senior management to participate in satisfy on a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating timely basis all conditions applicable to the completion of Buyer Parties to obtaining the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing Debt Refinancing as set forth in the Refinancing Commitment Letter that are within its control; (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions (including, if necessary, the flex provisions) contemplated by the Refinancing Commitment Letter or on other terms no less favorable to Buyer; (iv) comply with the Buyer’s obligations under the Refinancing Commitment Letter and the definitive agreements with respect thereto; (v) subject to the terms and conditions contemplated in the Refinancing Commitment Letter, consummate the Debt Refinancing at or prior to the Effective Time; and (vi) enforce its rights under the Refinancing Commitment Letter. If any portion of the Debt Refinancing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Refinancing Commitment Letter or the definitive agreements with respect thereto thereto, the Buyer Parties shall promptly notify the MLP Parties and use their commercially reasonable efforts to amend, modify, supplement, alter, restate, substitute or replace the Debt Refinancing with other alternative financing, on terms and conditions contemplated by no less favorable to Buyer, as promptly as possible; provided, however, that the Commitment Letter (Buyer Parties shall not permit any such agreements amendment, modification, supplement, alteration, restatement, substitution or replacement of the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Refinancing Commitment Letter or the Definitive Financing AgreementsDebt Refinancing on terms that are less favorable to Buyer, or (C) prevent, impede or delay without the consummation prior consent of the Merger and MLP Parties, such consent not to be unreasonably withheld, delayed or conditioned. In such event, the other transactions contemplated by this Agreement. This Section 6.11 term “Refinancing Commitment Letter” as used herein shall be deemed to apply include the amended, modified, supplemented, altered, restated, substituted or replacement, commitment letter. The Buyer Parties shall promptly (and in any event within two Business Days) notify the MLP Parties: (A) of any default or breach by any party to the Refinancing Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references definitive documents related to the Financing Debt Refinancing of which the Buyer Parties are aware; (B) of the receipt of any written notice from any party to the Refinancing Commitment Letter with respect to (1) any default, breach, termination or repudiation by any party to the Refinancing Commitment Letter or definitive documents related to the Debt Refinancing or (2) any material dispute or disagreement between or among parties to the Refinancing Commitment Letter or definitive documents related to the Debt Refinancing of which the Buyer Parties become aware; and (C) if for any reason the Buyer Parties determine in good faith that they will not be able to obtain all or any portion of the Debt Refinancing on the terms, in the manner or from the sources contemplated by the Refinancing Commitment Letters. The Buyer Parties shall keep the MLP Parties informed on a reasonably current basis of the status of their efforts to arrange the Debt Refinancing and provide copies of all draft and executed documents related to the Debt Refinancing to the MLP Parties. In the event that the Buyer Parties are unable to obtain the Debt Refinancing or alternative financing on terms no less favorable to Buyer, the Buyer Parties will obtain an amendment to the Buyer Credit Agreement so that the Buyer will be permitted thereunder to, and will have sufficient funds available thereunder to, refinance the MLP Credit Agreements at the Closing; provided, however, that the Buyer Parties shall be deemed permitted to refer instead pay any and all fees to the lenders and administrative agent in connection with any such alternative financingamendment without the prior consent of the MLP Parties.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Inergy L P), Merger Agreement (Inergy Midstream, L.P.)
Financing. If any Grantor shall be subject to any Insolvency Proceeding and First Lien Agent consents to the use of cash collateral (aas such term is defined in Section 363(a) Parent covenants and of the Bankruptcy Code; herein, “Cash Collateral”), on which First Lien Agent has a Lien or to permit any Grantor to obtain financing provided by any one or more First Lien Claimholders under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (such financing, a “DIP Financing”), then Second Lien Trustee agrees with the Companythat it will, on behalf of itself the Second Lien Claimholders, consent to such Cash Collateral use (and its Subsidiariesnot contest, that it shall take all action necessary protest or object to ensure that as of the Closing Date, Parent such Cash Collateral use) and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts raise no objection to (ior protest or contest) provide information relating to the Company and its Subsidiaries to the such DIP Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligenceand, to the extent customary and reasonable and the Liens securing the First Lien Obligations are discharged, subordinated to, or pari passu with such DIP Financing, Second Lien Trustee will subordinate its Liens in the Collateral to the extent Liens securing such DIP Financing; provided that (a) the principal amount of any such DIP Financing plus the outstanding principal amount of other First Lien Obligations does not unreasonably interfering with exceed the business First Lien Cap and (b) any such Cash Collateral use or DIP Financing does not compel any Grantor to seek confirmation of a specific plan of reorganization for which all or substantially all of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as material terms are set forth in the Commitment Letter Cash Collateral order or DIP Financing documentation. If First Lien Claimholders offer to provide DIP Financing that meets the requirements set forth in clauses (a) through (b) above, the Second Lien Trustee agrees that neither it nor any Second Lien Claimholder shall, directly or indirectly, provide, offer to provide, or support any DIP Financing secured by a Lien senior to or pari passu with the Liens securing the First Lien Priority Obligations, and in the event First Lien Claimholders do not offer such DIP Financing, Second Lien Trustee agrees that neither it nor any Second Lien Claimholder may provide, offer to provide, or support any DIP Financing which would be secured by a Lien senior to or pari passu with the Liens securing the First Lien Priority Obligations unless such DIP Financing results in the immediate Discharge of the First Lien Priority Obligations. The foregoing provisions of this Section 6.2 shall not prevent the Second Lien Trustee or the definitive agreements Second Lien Claimholders from objecting to any provision in any Cash Collateral order or DIP Financing documentation relating to any provision or content of a plan of reorganization. If, in connection with respect thereto any Cash Collateral use or DIP Financing, any Liens on terms and conditions contemplated the Collateral held by the Commitment Letter (any such agreements the First Lien Claimholders are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties carve out,” or fees owed to the Commitment Letter or United State Trustee, and so long as the Definitive Financing Agreementsamount of such surcharge, claim, carve out, or (C) preventfees is reasonable under the circumstances, impede then the Liens on the Collateral of Second Lien Claimholders shall also be subordinated to such interest or delay claim and shall remain subordinated to the consummation Liens on the Collateral of the Merger and the other transactions contemplated by First Lien Claimholders consistent with this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Intercreditor Agreement (Saratoga Resources Inc /Tx), Indenture (Saratoga Resources Inc /Tx)
Financing. Purchaser shall arrange the Financing on the terms and conditions described in the Financing Commitment, including (a) Parent covenants negotiating definitive agreements with respect thereto on terms and agrees with conditions contained therein and (b) satisfying all conditions applicable to Purchaser in such definitive agreements that are within its control. If all other conditions (including all conditions under the Company, Financing Commitment that are required to be satisfied on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will ) have funds, in the aggregate, sufficient for been satisfied (i) the payment of the aggregate Cash Consideration and any other amounts required than those conditions that by their nature have to be paid pursuant satisfied at the Closing) and Seller and Purchaser are prepared to Article IIclose, Purchaser agrees that if the Financing (other than the bridge facility) is not otherwise available, it will draw down from the bridge facility contemplated by the Financing Commitment an amount not less than the amount needed to pay the Estimated Cash Consideration, and shall take such actions as are reasonably necessary to cause the Closing to occur no later than the Outside Date (as defined in Section 8.1(b) below). Seller agrees to provide, and shall cause JCG LLC, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash Company Subsidiaries and its and their representatives, attorneys, independent auditors and advisors to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awardsprovide, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent all reasonable cooperation in connection with the Merger or arrangement of the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to Financing as may be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing Purchaser (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its the Company Subsidiaries), including using reasonable best efforts to including, without limitation, (i) provide information relating to the Company participation in meetings, drafting sessions and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)due diligence sessions, (ii) participate furnishing Purchaser and cause senior management to participate in a reasonable number of meetings its financing sources and its and their attorneys, independent auditors and advisors with Financing Sources financial and other presentationspertinent information regarding JCG LLC, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) the Company and sessions with the rating agencies, in each case, relating to the completion of the Financing Company Subsidiaries as may be reasonably requested by the Financing SourcesPurchaser, (iii) assist assisting Purchaser and its financing sources in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for any debt raised to complete the Financingtransactions contemplated hereby, and (B) materials for rating agency presentations, and (C) business projections and financial statements (including historical financial statements of the Company and the Company Subsidiaries prepared in accordance with GAAP, pro forma financial statements and other financial information required pursuant to Regulation S-X of the Securities Act), (iv) cooperate reasonably cooperating with the marketing efforts of Purchaser and its financing sources for any component of debt raised by Purchaser to complete 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)transactions contemplated hereby, (v) execute providing and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other executing such documents and instruments ancillary to the Financing as may be reasonably requested by Parent as Purchaser, (vi) reasonably facilitating the pledge of collateral, and (vii) using reasonable best efforts to cause legal counsel to provide customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any legal opinions and an independent auditor of the Company to provide any unqualified opinions, consents or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments customary comfort letters with respect to such existing arrangements the financial statements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to as may be made available to Parent and/or Merger Sub at the Closing, reasonably requested by Purchaser; provided that the Company Seller shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) have any liability fee or any obligation under any credit agreement or any related document or incur any other agreement or document related to the Financing (or alternative financing that Parent may raise Liability in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective RepresentativesFinancing.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Jean Coutu Group (PJC) Inc.), Stock Purchase Agreement (Rite Aid Corp)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant Subject to the terms and conditions of Section 1.9 in respect of the Company RSU Awardsthis Agreement, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its commercially reasonable best efforts to cause each of its obtain the Debt Financing on the terms and their respective Representatives, conditions (including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice “market flex” provisions) described in connection with the Debt Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries)Commitment, including using its commercially reasonable best efforts to (i) provide information relating comply with its obligations under the Debt Financing Commitment and any definitive agreements related thereto (the “Debt Financing Documents”), (ii) maintain in effect the Debt Financing Commitment, (iii) negotiate and enter into Debt Financing Documents on a timely basis on terms and conditions (including the “market flex” provisions) contained in the Debt Financing Commitment or otherwise not materially less favorable with respect to conditionality to Parent in the aggregate than those contained in the Debt Financing Commitment, (iv) satisfy on a timely basis all conditions contained in the Debt Financing Commitment that are applicable to Parent and within its control, including the payment of any commitment, engagement or placement fees required as a condition to the Company Debt Financing and its Subsidiaries (v) if all conditions to the Debt Financing Sources that is reasonably available Commitment have been satisfied, cause the Commitment Parties to consummate the Company and is customary for completion of the Debt Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period at or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding (it being understood that it is not a condition to Closing under this Agreement for Parent to obtain the businessDebt Financing). Parent shall give the Company prompt notice upon having knowledge of any breach by any Commitment Party under the Debt Financing Documents or any termination of any of the Debt Financing Documents. Other than as set forth in this Section 6.16, operations and financial projections Parent shall not, without the prior written consent of the Company, amend, modify, supplement or waive any of the conditions or contingencies to funding contained in the Debt Financing Documents or any other provision of, or remedies under, the Debt Financing Documents (other than in accordance with the “market flex” provisions), in each case to the extent such amendment, modification, supplement or waiver (i) would reasonably be expected to have the effect of (A) adversely affecting the ability of Parent to timely consummate the Merger and other transactions contemplated by this Agreement or (B) delaying the Closing or (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources contains conditions and other presentationsterms that would reasonably be expected to affect the availability of the Debt Financing that are more onerous, road showstaken as a whole, drafting sessionsthan those conditions and terms contained in the Debt Financing Commitment as of the date hereof; provided that notwithstanding any other provision of this Agreement, due diligence sessions Parent shall be entitled from time to time to (including accounting due diligence sessionsx) amend, restate, replace, supplement or otherwise modify, or waive any of its rights under, the Debt Financing Commitment or substitute other financing for all or any portion of the Debt Financing from the same or alternative financing sources, and sessions with (y) amend, restate, replace, supplement or otherwise modify the rating agenciesDebt Financing Commitment for the purpose of adding agents, co-agents, lenders, arrangers, bookrunners or other persons that have not executed the Debt Financing Commitment as of the date hereof, in each case, relating subject to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall subclauses (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, and (ii) be required to pay above. Upon any commitment such amendment, supplement or other similar feemodification, (iii) 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 accordance with the transactions contemplated by terms of this Agreement) or (iv) be required to incur any other liability in connection with Section 6.16(a), the term “Debt Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) Commitment” shall promptly, upon request by the Company, reimburse the Company mean for all reasonable and documented out-of-pocket costs and expenses actually incurred by purposes of this Agreement the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Debt Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing modified. Parent shall promptly deliver to the same extent that the Company would have been obligated to comply with respect to the Financingtrue and complete copies of any such amendment, provided, that the Commitment Letter as so amended, replaced, supplemented supplement or otherwise modified and/or such other debt or equity financing shall not modification (A) add new (or modifysubject, in a manner adverse the case of any fee letter or engagement letter, to Parent, any existing) conditions precedent customary redactions (none of which redacted terms would reasonably be expected to adversely affect the principal amount or contingencies to the funding on the Closing Date availability of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”Debt Financing), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing).
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Financing. (a) Parent covenants and agrees with Prior to the CompanyClosing, on behalf of itself the Company and its Subsidiaries, that it Subsidiaries shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stockuse commercially reasonable efforts, and shall use commercially reasonable efforts to cause the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect respective representatives of the Company RSU Awardsand its Subsidiaries to, (ii) provide reasonable and customary cooperation to the funding of any required refinancings or repayments of any existing indebtedness of the Company or extent reasonably requested by Parent in connection with the Merger arrangement of the term loan and revolving loan facilities financing sought by Parent or its Affiliates in connection with the consummation of the transactions contemplated by this Agreement (the “Financing”), including using commercially reasonable efforts to: (i) participate in a reasonable number of meetings, presentations and due diligence sessions with prospective lenders in the Financing (but not more than one (1) primary bank meeting), in each case, upon reasonable advance notice and at mutually agreeable dates, locations and times; (ii) provide reasonable assistance with the preparation by Parent of customary materials for bank information memoranda and similar customary marketing documents required to be delivered in connection with arranging the Financing, and, to the extent requested by Parent at least two (2) Business Days prior to the Closing Date, provide customary and reasonably required “know-your customer” information; and (iii) furnish historical financial information regarding the payment of all fees and expenses and other payment obligations required to be paid or satisfied Company reasonably requested by Parent, Merger Sub and the Surviving Entity Parent in connection with the Merger Financing; provided, however, that, notwithstanding anything to the contrary contained herein, in no event shall the Company, its Subsidiaries or its representatives be required to prepare or furnish to any Person any pro forma financial information, any financial or other information that is not currently readily available to the Company and its Subsidiaries on the Financingdate hereof or is not otherwise prepared in the ordinary course of business of the Company and its Subsidiaries at the time requested by Parent, or to obtain review of any financial or other information by its accountants.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts Notwithstanding anything to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all the contrary in this Section 6.12:
(i) nothing in this Section 6.12 will require any cooperation reasonably requested by Parent with reasonable notice in connection with to the Financing extent the same would (provided that such requested cooperation does not A) unreasonably interfere with the ongoing operations of the Company and and/or its Subsidiaries), including using reasonable best efforts (B) cause any condition to Closing set forth herein to not be satisfied or otherwise cause any breach by the Company of this Agreement (iprovided that if Parent and Acquisition Sub agree in writing to waive such breach, then this Section 6.12(b)(i)(B) provide information relating to shall not excuse failure by the Company and its Subsidiaries to the Financing Sources that is cooperate in accordance with Section 6.12(a)) or (C) reasonably available be expected to the Company and is customary for completion of the Financing by the Financing Sources conflict with, violate, breach or otherwise contravene (including audited consolidated financial statements 1) any organizational document of the Company covering the three and/or its Subsidiaries, (2) any Law and/or (3) fiscal years immediately preceding the Closing for any agreement or arrangement to which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 is a party;
(ii) none of the Company or any of its Subsidiaries)Company, (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries or their respective directors, officers, employees or representatives shall be required to execute and execute, deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing)enter into, or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financingperform any agreement, document or instrument, including any amendments of definitive financing document, with respect to any of Financing or adopt resolutions approving the Company’s or its Subsidiaries’ existing credit agreements, currency documents and/or instruments pursuant to which any Financing is obtained or interest hedging agreements; provided pledge any collateral with respect to any Financing the effectiveness of which is not contingent upon the Closing or that no obligation of any of the Company or its Subsidiaries shall would otherwise be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments prior to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.;
(ciii) Notwithstanding the foregoingno director, until the Effective Time occursofficer, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director employee or other representative of the Company or any of its Subsidiaries with respect shall be required to deliver any certificate or opinion that such director, officer, employee reasonably believes, in good faith, contains any untrue certifications or opinions, as applicable;
(iv) nothing herein shall require the Financing Company or any of its Subsidiaries or representatives to cause the delivery of any legal opinions; and
(or alternative financing that Parent may raise in connection with v) neither the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee, (iii) fee or have any liability or obligation, including any obligation indemnification obligation, under any credit agreement or any related document or any other agreement or document related to any Financing, in each case, until the Financing Effective Time.
(or alternative financing that c) Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent shall (i) shall promptly, promptly upon request by the CompanyCompany (and in any event, prior to the Closing), reimburse the Company Company, its Subsidiaries and their Affiliates for all reasonable and documented out-of-pocket costs fees and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility forAffiliates, or incur any liability to any Person underincluding without limitation, the Financing (or alternative financing that Parent may raise all reasonable and documented fees and expenses of their advisors, counsel and accountants incurred in connection with the transactions contemplated by this Agreement)such requested cooperation, and (iiiii) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from Affiliates and representatives against any claim, loss, damage, injury, liability, Order, award, judgments, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable fees and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments expenses of counsel and penalties suffered accountants) or settlement payment incurred by any as a result of them prior to the Effective Time such cooperation in connection with the arrangement of the Financing and any information utilized in connection therewith (including any claim by or with respect to any such lenders, prospective lenders, agents and arrangers and ratings agencies). Each of Parent and Acquisition Sub acknowledges and agrees that its obligations under this Agreement to consummate the transactions contemplated by this Agreement, including without limitation the Offer and the Merger, shall not be conditioned in any respect on Parent’s and/or Acquisition Sub’s receipt of proceeds from, or any other than historical information relating to aspect of, the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective RepresentativesFinancing.
(d) In Notwithstanding anything to the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financingcontrary in this Agreement, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as condition set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”2(e)” of Annex I, (B) adversely impact the ability of Parent to enforce its rights against other parties as it applies to the Commitment Letter or the Definitive Financing AgreementsCompany’s obligations under this Section 6.12, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to be satisfied unless the Commitment Letter as so amendedCompany has knowingly and willfully materially breached its obligations under this Section 6.12, replaced, supplemented or otherwise modified and/or and such other debt or equity financing breach has been the primary and references to direct cause of the Financing shall not being obtained. “Willful” means, with respect to any agreement or covenant, where the breaching party knows an action or omission is, or would reasonably be deemed expected to refer instead to result in, a breach of such alternative financingagreement or covenant.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Planet Payment Inc)
Financing. (a) Parent covenants and agrees Merger Subsidiary shall 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, proper or advisable to (i) maintain in effect the Financing and the Financing Commitments, (ii) negotiate and enter into definitive financing agreements with respect to the Financing and Financing Commitments on terms and conditions (including the “flex” provisions) contemplated by the Financing Commitments, so that such agreements are in effect as promptly as practicable after the date hereof but in any event no later than the Acceptance Time, (iii) cause their respective Representatives to cooperate in the preparation of all documents (including offering memoranda, private placement memoranda, prospectuses and road show presentations, if any) and the making of all filings in connection with the CompanyFinancing and the other transactions contemplated by the Financing Commitments, and in executing and delivering all documents and instruments related to the Financing Commitments, (iv) satisfy on behalf a timely basis all conditions applicable to Parent and Merger Subsidiary in the Financing Commitments that are within its control and comply with its obligations thereunder, (v) enforce their rights under the Financing Commitments in the event of itself and its Subsidiaries, a breach by the Financing Sources that it shall take all action necessary to ensure that as impedes or delays the consummation of the Closing DateFinancing, including seeking specific performance of the parties thereunder and (vi) otherwise taking, or causing to be taken, all actions and doing, or causing to be done, all other things necessary, proper or advisable to consummate the Financing at or prior to the Acceptance Time. Parent and Merger Subsidiary shall provide to the Company copies of all final documents relating to the Financing and shall keep the Company fully informed of material developments in respect of the financing process relating thereto. Prior to the Acceptance Time, Parent and Merger Sub will have fundsSubsidiary shall not agree to, in the aggregateor permit, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article IIamendment or modification of, or waiver under, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant Financing Commitments or other final documentation relating to the terms of Section 1.9 Financing in a manner that (x) would materially delay or prevent the Closing in any respect or (y) is otherwise adverse to the Company in any material respect, without the prior written consent of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent which consent may be withheld in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financingits sole discretion).
(b) The In the period between the date hereof and the Acceptance Time, upon request of Parent and Merger Subsidiary, the Company shall, and shall cause its Subsidiaries to, reasonably cooperate with Parent and shall use Merger Subsidiary in connection with the Financing, including, (i) preparation of all required financial statements relating to the Company and its Subsidiaries, (ii) reasonable best efforts participation in meetings and road shows, if any, (iii) the provision of information relating to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation the Financing reasonably requested by Parent with and Merger Subsidiary, (iv) reasonable notice assistance in connection with the Financing preparation of offering memoranda, private placement memoranda, prospectuses and similar documents of Parent and Merger Subsidiary and (v) after the Acceptance Time, facilitate the perfection of the lenders’ security interest in the collateral contemplated by the Financing; provided that nothing herein shall require such requested cooperation does not from any the Company or any of its Subsidiaries to the extent it would unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) and Merger Subsidiary shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with such cooperation.
(c) If, notwithstanding the use of reasonable best efforts by Parent and Merger Subsidiary to satisfy its obligations under Section 8.05(a), any of the Financing or the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated prior to the Acceptance Time, in whole or in part, for any reason, Parent and Merger Subsidiary shall (i) promptly notify the Company of such expiration or termination and the reasons therefor and (ii) promptly arrange for alternative financing (the “Required Financing Alternative”) from other sources to replace the financing contemplated by such expired or terminated commitments or agreements, which Required Financing Alternative (x) shall not include any conditions that are more onerous than or in addition to the conditions set forth in the Financing and (y) shall be in an amount sufficient to pay for the consummation of the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) Notwithstanding anything to the contrary contained in Section 8.05(a), at any time Parent or Merger Subsidiary may replace the Financing with alternative financing arrangements which (i) provide Parent and Merger Subsidiary with sufficient funds to consummate the transactions contemplated by this Agreement prior to or concurrent with the Acceptance Time and (ii) do not prevent or materially impair or delay the Closing (together with the Required Financing Alternative, the “Financing Alternative”). In the event that Parent or Merger Subsidiary replaces the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the FinancingFinancing with any Financing Alternative, the Company terms of Section 8.05(a) shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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 no longer apply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing but shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements thereafter apply with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingAlternative.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (MediaMind Technologies Inc.), Merger Agreement (DG FastChannel, Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and MergerSub shall use its their reasonable best efforts to cause each of its arrange and their respective Representativesobtain the Debt Financing on the terms and conditions described in the Debt Commitment Letters as promptly as practicable after the date hereof, including legal, tax, regulatory and accounting, to, provide (but subject in all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including using respects to Section 11.13) their reasonable best efforts to (i) provide information relating to maintain in effect the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Debt Commitment Letters, (ii) participate negotiate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letters (including the flex provisions) or on other terms no less favorable to Parent and MergerSub as to conditionality, (iii) satisfy on a timely basis all conditions applicable to Parent and MergerSub in the Debt Commitment Letters that are within their control (including by consummating the Equity Financing pursuant to the terms of the Equity Commitment Letter), (iv) consummate the Financing at or prior to the Closing and (v) enforce their rights under the Equity Commitment Letter to the extent set forth in Section 11.13 (but not the Debt Commitment Letters as more fully described in Section 11.13); it being understood that Parent and MergerSub may seek to obtain financing in a private placement of securities pursuant to Rule 144A promulgated under the Securities Act in lieu of a portion of the Debt Financing (and references to the Debt Financing in this Section 8.03 shall be deemed to include such private placement); provided, however, that (1) Parent and MergerSub shall not release or waive the Debt Commitment Letters or the obligations of the arrangers and lenders thereunder and (2) Parent and MergerSub shall proceed with, and consummate, the financing contemplated in the Debt Financing Letters in the event that such alternative private placement financing is not available. Parent shall keep the Company reasonably informed with respect to all material activity concerning the status of the Debt Financing contemplated by the Debt Commitment Letters and shall give the Company notice of any material adverse change with respect to such Financing as promptly as practicable. Without limiting the generality of the foregoing, Parent and MergerSub shall give the Company prompt notice (x) of any material breach or material default by any party to any of the Debt Commitment Letters, or any definitive agreements related to the Debt Financing, in each case of which Parent or MergerSub becomes aware, (y) of the receipt of any written notice or other written communication, in each case received from any Debt Financing source with respect to any (3) material breach of Parent’s or MergerSub’s obligations under the Debt Commitment Letters or definitive agreements related to the Debt Financing, or default, termination or repudiation by any party to any of the Debt Commitment Letters or definitive agreements related to the Debt Financing or (4) material dispute between or among any parties to any of the Debt Commitment Letters or definitive agreements related to the Debt Financing or any provisions of any of the Debt Commitment Letters, in each case, with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at Closing and (z) of the receipt of any notice or other communication (written or verbal) on the basis of which Parent expects that a party to the Debt Financing will fail to fund the Debt Financing or is reducing the amount of the Debt Financing; provided that in no event shall Parent or MergerSub be under any obligation to disclose any information pursuant to clauses (1) or (2) that would waive the protection of attorney-client or similar privilege if such party shall have used reasonable best efforts to disclose such information in a way that would not waive such privilege. As soon as reasonably practicable, but in any event within five Business Days of the date the Company delivers to Parent or MergerSub a written request, Parent and MergerSub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clauses (x), (y) or (z) of the immediately preceding sentence. In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter Letters (any such agreements including the “Definitive Financing Agreements”flex provisions), (A) Parent shall promptly notify the Company and (B) adversely impact Parent and MergerSub shall use their reasonable best efforts to arrange and obtain any such portion from alternative sources, on terms, taken as whole, that are no more adverse to Parent and the ability of Parent to enforce its rights against other parties Company (including after giving effect to the Commitment Letter or market flex provisions), as promptly as practicable following the Definitive Financing Agreements, or (C) prevent, impede or delay occurrence of such event but in no event later than the consummation last day of the Merger and Marketing Period. In furtherance of the other transactions contemplated by provisions of this Agreement. This Section 6.11 shall 8.03, one or more Debt Commitment Letters may be deemed to apply to the Commitment Letter as so amended, replacedrestated, supplemented or otherwise modified and/or such other debt or equity financing and references superseded at the option of Parent after the date of this Agreement but prior to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.the
Appears in 2 contracts
Samples: Merger Agreement (Rennes Fondation), Merger Agreement (Ebix Inc)
Financing. (a) Parent covenants Marvell and agrees HoldCo shall use their respective reasonable best efforts to do all things necessary or advisable to arrange, obtain and consummate the Debt Financing on or prior to the date the Closing is required to be effected in accordance with Section 1.3, on the terms and conditions (including, to the extent applicable, the “flex” provisions) described in the Debt Commitment Letters (it being understood that, for purposes of this Section 5.18, references to the Debt Commitment Letters shall be deemed to include any Fee Letter), including using their respective reasonable best efforts to: (i) enter into definitive agreements with respect to the Debt Financing on the terms and conditions (as such terms may be modified or adjusted in accordance with the Companyterms, on behalf of itself and its Subsidiarieswithin the limits, that it shall take all action necessary to ensure that as of the Closing Date“flex” provisions contained in any Fee Letter or as otherwise agreed by Marvell, Parent HoldCo and Merger Sub will have fundsthe Financing Sources, subject to the restrictions on amendments of the Debt Commitment Letters set forth below) contemplated by the Debt Commitment Letters (the “Definitive Debt Financing Agreements”); and (ii) satisfy (or obtain the waiver of) on a timely basis all conditions and comply with all obligations applicable to Marvell and HoldCo, including with respect to the payment of any commitment, engagement or placement fees, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, Debt Commitment Letters and the aggregate amount of cash to be paid pursuant Definitive Debt Financing Agreements to the terms extent a failure to do so would result in a failure of Section 1.9 in respect of the Company RSU Awards, (ii) a condition precedent to the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with Debt Financing. If all conditions to the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or Debt Financing have been satisfied by Parent, Merger Sub and the Surviving Entity conditions set forth in connection Section 6 have been satisfied or waived, Marvell and HoldCo shall use their reasonable best efforts to take all actions within its control to cause the Financing Sources to fund the Debt Financing at or prior to Closing, including to seek to enforce its rights with respect to funding under the Merger Debt Commitment Letters and the FinancingDefinitive Debt Financing Agreements in the event of a breach thereof by the Financing Sources party thereto.
(b) The Company shallMarvell and HoldCo shall not agree to any amendments or modifications to any condition, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each or waive any of its and their respective Representativesrights, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with under the Debt Commitment Letters or the Definitive Debt Financing (provided that such requested cooperation does not unreasonably interfere with Agreements without the ongoing operations prior written consent of the Company if any such amendment, modification or waiver of the Debt Commitment Letters or the Definitive Debt Financing Agreements would (x) reduce the aggregate amount of the Debt Financing to an amount that, together with HoldCo’s and its Subsidiaries)Marvell’s cash on hand, including using reasonable best efforts would be less than an amount reasonably required to consummate the Mergers, (iy) provide information relating impose new or additional conditions or (z) otherwise amend, modify or expand any conditions to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion initial funding of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agenciesDebt Financing, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 would 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall expected to: (i) be required to take any action in materially delay or prevent the capacity of a director of the Company Closing from occurring; or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent Marvell or HoldCo to (A) enforce its their respective rights against the other parties to the Debt Commitment Letter Letters or the Definitive Debt Financing Agreements or (B) cause the Mergers to be timely consummated (it being understood that Marvell and HoldCo may amend, restate, modify or supplement each of the Debt Commitment Letters or the Definitive Debt Financing Agreements to add lenders, lead arrangers, bookrunners, underwriters, syndication agents or similar entities that have not executed such Debt Commitment Letters as of the date of this Agreement, to provide for the assignment and reallocation of a portion of the debt financing commitments contained in such Debt Commitment Letters or the Definitive Debt Financing Agreements and to grant customary approval rights to such additional arrangers and other Entities in connection with such appointments as expressly set forth in such Debt Commitment Letters, in each case, without the Company’s consent, provided that such amendment would not reasonably be expected to prevent or materially delay the Closing). Marvell and HoldCo shall use their respective reasonable best efforts to maintain in effect the Debt Commitment Letters (and any Definitive Debt Financing Agreements) until the earliest to occur of the Closing, or (C) prevent, impede or delay the consummation of the Merger Debt Financing and the valid termination of this Agreement.
(c) If any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Debt Commitment Letters, and such portion of the Debt Financing is reasonably determined by Marvell to be required to consummate the Mergers and perform its other transactions obligations under this Agreement, then Marvell shall promptly notify the Company in writing and use its reasonable best efforts to, as promptly as practicable following the occurrence of such event, arrange and obtain from alternative sources of debt financing that are reasonably acceptable to Marvell in an amount (together with all other sources of cash or other financing sources available to Marvell) sufficient to satisfy the Financing Uses. The exercise of such reasonable best efforts shall not require Marvell or HoldCo to obtain additional equity or debt with an all-in yield or tenor that is different than the debt financing set forth in the Debt Commitment Letters (after giving effect to the maximum amount of any “flex” provisions contained therein). The new debt commitment letter and fee letter entered into in connection with any such alternative financing pursuant to Section 5.18(b) or this Section 5.18(c), are referred to, respectively, as a “New Debt Commitment Letter” and a “New Fee Letter.” None of Marvell, HoldCo, Delaware Merger Sub or Bermuda Merger Sub shall enter into such New Debt Commitment Letter without the consent of the Company if the terms thereof, or if the conditions to funding thereunder, would reasonably be expected to materially impair, delay or prevent the Closing or would, when taken as a whole, be materially less favorable to Marvell or HoldCo than those set forth in the Debt Commitment Letters. If Marvell and/or HoldCo enter into any New Debt Commitment Letter: (i) any reference in this Agreement to the “Debt Financing” shall mean the debt financing contemplated by the Debt Commitment Letters as modified pursuant to clause “(ii)” below; and (ii) any reference in this Agreement. This Section 6.11 Agreement to the “Debt Commitment Letters” (and any definition incorporating the term “Debt Commitment Letters,” including the definition of “Definitive Debt Financing Agreements”) shall be deemed to apply include (A) the Debt Commitment Letters and any Fee Letter to the extent not superseded by a New Debt Commitment Letter or New Fee Letter, as so amendedthe case may be, replacedat such time, supplemented and (B) any New Debt Commitment Letter or otherwise modified and/or such other debt or equity financing and references New Fee Letter to the Financing shall be deemed to refer instead to such alternative financingextent then in effect.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Marvell Technology Group LTD), Agreement and Plan of Merger and Reorganization (INPHI Corp)
Financing. (a) Parent covenants and agrees with From the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of date hereof until the Closing Date, Parent and Merger Sub will 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 Debt Financing and the proceeds therefrom on the terms and conditions described in the Debt Commitment Letter, including using their commercially reasonable efforts to (i) negotiate and execute the definitive agreements with respect to the Debt Financing (the “Definitive Debt Financing Agreements”) at or prior to the date that the Closing is require to be effected in accordance with Section 2.02; provided, that such Definitive Debt Financing Agreements shall not result in any reduction of 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) to an amount that is less than the amount sufficient to consummate the Transactions on the Closing Date; (ii) satisfy on a timely basis all conditions, contingencies and requirements set forth in the Debt Commitment Letter and Definitive Debt Financing Agreements that are within Parent’s and Merger Sub’s control, (iii) comply on a timely basis with all material covenants and other obligations set forth in the Debt Commitment Letter and Definitive Debt Financing Agreements, (iv) pay in a timely manner any commitment or other fees that are or become due and payable under or with respect to the Debt Commitment Letter and the Definitive Debt Financing Agreements, (v) otherwise not terminate the commitment for the Debt Financing set forth in the Debt Commitment Letter, subject to amendments, modifications and replacements permitted hereunder and (vi) subject to Section 6.16(e)(ii), if all of the conditions to Parent’s and Merger Sub’s obligations under Section 7.02 (other than those conditions that by their terms are to be satisfied at the Closing) have been satisfied, enforce its rights under the Debt Commitment Letter and the Definitive Debt Financing Agreements.
(b) In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (including any applicable “flex” terms contained in the related fee letter) or the Definitive Debt Financing Agreements shall be withdrawn, terminated or otherwise amended or modified in any respect such that any portion of the Debt Financing becomes unavailable for any reason, then Parent and Merger Sub shall promptly (and in any event within two (2) Business Days) (i) notify the Company of such unavailability and (ii) use its commercially reasonable efforts to arrange and obtain alternative financing from alternative sources in an amount, which when combined with the available lines of credit, the amount of available cash of Parent and Merger Sub and other sources of available funds, is sufficient to pay all obligations of Parent and Merger Sub hereunder that are required to be paid on the Closing Date and on terms and conditions that are not, in the aggregate, sufficient for less favorable to Company (ias determined in the commercially reasonable judgment of Company) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to than the terms of Section 1.9 contemplated by the Debt Commitment Letter in respect of effect on the Company RSU Awardsdate hereof, (iisuch alternative financing, “Alternative Financing”) (it being understood and agreed that no such Alternative Financing shall expand upon the funding of any required refinancings conditions precedent or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting to the use of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely contingencies in a manner that is not intended would reasonably be expected to or reasonably likely (x) be more onerous in any material respect to harm or disparage those conditions contained in the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries)Debt Commitment Letter, (vy) execute and deliver (prevent or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at materially delay the Closing, provided that or (z) make the Company shall not be prohibited from using cash and marketable securities in Closing 38031572.13 less likely to occur), as promptly as practicable following the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Financing Sources that the public side versions occurrence of such documentsevent, if anybut, do not include material non-public information about in no event later than the Company or its Affiliates, provided that date Parent and Merger Sub are required to consummate the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable Closing under this Agreement. If and to the extent not unreasonably interfering that the Debt Financing is supplemented or superseded by any Alternative Financing, the terms “Debt Financing,” “Debt Commitment Letter,” and “Definitive Debt Financing Agreements” shall each be deemed to be modified, mutatis mutandis, to also refer to such Alternative Financing and any commitments or definitive agreements with respect thereto and the business of terms “Debt Financing Sources” and “Debt Source Parties” shall be deemed to be modified, mutatis mutandis, to also include the Company financing sources for such Alternative Financing. If Parent and its SubsidiariesMerger Sub proceed with any Alternative Financing, Parent and Merger Sub 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.
(c) Notwithstanding Parent and Merger Sub shall not permit any amendment, supplement or modification to be made to, or agree to permit any waiver of any provision or remedy under, the Debt Commitment Letter or Definitive Debt Financing Agreements (including any amendment, supplement, modification or waiver that has the effect of changing the amount of fees to be paid or original issue discount) without the Company’s prior written consent, except that Parent and Merger Sub may amend, supplement, waive or otherwise modify the Debt Commitment Letter or Definitive Debt Financing Agreements (including by joining one or more additional lenders or agents as parties thereto) if such amendment, supplement or modification does not result in: (A) an aggregate amount of Debt Financing provided for in the Debt Commitment Letter or Definitive Debt Financing Agreements (including by changing the amount of fees or original issue discount contemplated thereby) that, when combined with the available lines of credit, the amount of available cash of Parent and Merger Sub and other sources of available funds, is less than the amount sufficient to consummate the Transactions; (B) any expansion or imposition of new conditions or other contingencies that would be reasonably expected to (x) be more onerous in any material respect than those conditions and contingencies contained in the Debt Commitment Letter as in effect on the date hereof, (y) prevent or materially delay the Closing, or (z) make the Closing less likely to occur; or (C) any amendment or modification of any such conditions or contingencies in a manner adversely affecting the ability of Parent and Merger Sub to consummate the transactions contemplated hereby prior to the End Date.
(d) Parent and Merger Sub shall keep Company reasonably apprised (on a reasonably current basis and in reasonable detail) of material developments relating to the Debt Financing and promptly, upon written request of the Company, provide Company copies of any Definitive Debt Financing Agreements or executed commitment letters associated with an Alternative Financing. Without limiting the foregoing, until Parent shall notify the Effective Time occurs, neither Company promptly (and in any event within two (2) Business Days) if at any time prior to the Company, any of its Subsidiaries, nor their respective Representatives, shall Closing Date: (i) the Debt Commitment Letter expires or is terminated for any reason; (ii) Parent or Merger Sub obtains knowledge of any material breach or material default, or any threatened (in writing) material breach or material default, or any event that, with or without notice, lapse of time or both, would (or could reasonably be required expected to) give rise to take any action default or breach, by any party to the Debt Commitment Letter or any definitive document related to the Debt Financing of any provisions of the Debt Commitment Letter or any definitive document related to the Debt Financing, or (iii) if for any reason Parent or Merger Sub believes in good faith that they will not be able to obtain all or any portion of the Debt Financing (but only to the extent that such portion would reduce the amount of Debt Financing) below the amount sufficient to consummate the transactions contemplated hereunder on the terms, in the capacity manner or from the sources contemplated by the Debt Commitment Letter or Definitive Debt Financing Agreements.
(e) For the avoidance of a director doubt, (i) in no event shall the receipt or availability of the Company Debt Financing or any of its Subsidiaries with respect other funds or financing by Parent or Merger Sub be a condition to the Financing (or alternative financing that Parent may raise in connection with Parent’s and Merger Sub’s obligations to consummate the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, Agreement and (ii) in no event shall Parent, Merger Sub or any of their respective Related Parties be required to pay (x) commence any commitment litigation, arbitration or other similar fee, proceeding or seek specific performance against any Debt Source Party and (iiiy) have waive any liability term 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 contemplated by condition of this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Apex Global Brands Inc.), Merger Agreement (Apex Global Brands Inc.)
Financing. (a) Parent and Merger Sub shall, and shall cause their respective Affiliates 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 consummate and obtain the Financing on the terms (including the market “flex” provisions) set forth in the Financing Letters (or on other terms and conditions that are acceptable to Parent, subject to the Prohibited Financing Modifications) no later than the Closing Date, including by using reasonable best efforts to (i) maintain (and cause Topco and the Guarantor to maintain) in effect and comply with the Financing Letters and, to the extent entered into prior to the Closing, the definitive agreements relating to the Financing (the “Definitive Financing Agreements”) in a timely (taking into account the anticipated timing of the Closing and the Marketing Period) and diligent manner (subject to Parent’s or Merger Sub’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in accordance herewith), (ii) negotiate and enter into the Definitive Financing Agreements with respect to the Debt Financing on the terms (including the market “flex” provisions) and subject to the conditions set forth in the Debt Commitment Letters (or on other terms and conditions that are acceptable to Parent, subject to the Prohibited Financing Modifications), (iii) satisfy on a timely basis (taking into account the anticipated timing of the Closing and the Marketing Period) (or obtain a waiver of) all conditions applicable to (and within the control of) Parent and Merger Sub in the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, consummate the Financing and cause the Financing Sources, the Guarantor and the other Persons committing to fund the Financing to fund the Financing at the Closing, (v) enforce its rights under the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and agrees other obligations under the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements. Without limiting the generality of the foregoing, in the event that all conditions contained in the Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements (other than the consummation of the Merger and those conditions that by their nature are to be satisfied or waived at Closing) have been satisfied, Parent shall use its reasonable best efforts to cause the Financing Sources and the Guarantor to comply with their respective obligations thereunder, including to fund the CompanyFinancing, including by enforcing its rights under the Financing Letters, if necessary. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.13 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 (x) seek the Equity Financing from any source other than the Guarantor, or in any amount in excess of that contemplated by the Equity Commitment Letters, or (y) incur or pay any fees to obtain a waiver of any term of the Debt Commitment Letters or pay any material fees that are, in the aggregate, in excess of those contemplated by the Equity Commitment Letter or the Debt Commitment Letters (including any market “flex” provisions contained therein). Without limiting the generality of the foregoing, to the extent necessary in order to consummate the Closing on behalf of itself the Closing Date, Parent shall deliver a Pre-Marketing Notification (as defined in the Debt Commitment Letters) and exercise its Subsidiaries, that it shall take all action necessary rights to ensure that reallocate the commitments as of among the facilities contemplated by the Debt Commitment Letters.
(b) Prior to the Closing Date, Parent and Merger Sub will have fundsshall not, in without the aggregate, sufficient for (i) the payment prior written consent of the aggregate Cash Consideration and Company, subject to the last sentence of this paragraph, agree to or permit any other amounts required termination of or amendment, replacement, supplement or modification, or any waiver of, any provision or remedy under, the Financing Letters or, to be paid pursuant the extent entered into prior to Article IIthe Closing, the Definitive Financing Agreements if such termination, amendment, replacement, supplement, modification or waiver would (A) reduce the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letters on the date of this Agreement unless the amount of the Debt Financing or Equity Financing is increased by a corresponding amount) such that Topco, Parent or Merger Sub (without, for the avoidance of doubt, any use of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended to cash or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill available borrowing capacity of the Company or any of its Subsidiaries)) would not have sufficient available funds necessary to pay the Required Amounts, (vB) execute and deliver impose new or additional (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in adversely modify any materials relating existing) conditions to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments consummation of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modifyeach case, in a manner adverse that would reasonably be expected to Parent, any existing) conditions precedent or contingencies to make the funding on the Closing Date of the Financing as set forth in less likely to occur or prevent, hinder or delay the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”)Closing, (BC) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements or (D) otherwise reasonably be expected to prevent or hinder or materially delay the Closing (the foregoing clauses (A) through (D), collectively, the “Prohibited Financing Modifications”). Notwithstanding the foregoing, any amendment, supplement or modification to effectuate any market “flex” terms contained in the Debt Commitment Letters and/or Redacted Fee Letters provided as of the date hereof or to add or replace lenders, lead arrangers, bookrunners, syndication agents or other similar entities (or titles with respect to such entities) thereto shall be permitted and shall not require written consent of the Company. Parent shall promptly deliver to the Company copies of any written amendment, modification, supplement, consent or waiver to or under any Financing Letter, any related Redacted Fee Letter (which may be redacted in a fashion consistent with the Redacted Fee Letters) or, to the extent entered into prior to the Closing, the Definitive Financing Agreements promptly upon execution thereof.
(c) Parent shall, upon the Company’s reasonable request, keep the Company informed on a reasonably prompt basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and, upon the Company’s reasonable request, provide to the Company complete, correct and executed copies of the material definitive documents for the Debt Financing. Parent and Merger Sub shall give the Company prompt written notice of (i) any material breach, default, termination, cancellation or repudiation by any party to any of the Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements, of which Parent or Merger Sub becomes aware, (ii) the receipt by Parent or Merger Sub of any written notice or other written communication from any Financing Source or any party to the Equity Commitment Letter with respect to any (A) material breach, default, termination, cancellation or repudiation by any party to any of the Financing Letters or, to the extent entered into prior to the Closing, any Definitive Financing Agreements of any provisions of the Financing Letters or, to the extent entered into prior to the Closing, any Definitive Financing Agreements or (CB) prevent, impede material dispute or delay the consummation disagreement between Parent and any Financing Sources or among any parties to any of the Financing Letters or any definitive document related to the Financing, in each case regarding the Financing, and (iii) the occurrence of an event or development that could reasonably be expected to adversely impact the ability of Parent or Merger Sub to obtain all or any portion of the Financing necessary to fund the Required Amount on the Closing Date. Additionally, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence, subject to applicable legal privilege or confidentiality obligations.
(d) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions (including any applicable market “flex” provisions) contemplated by the Debt Commitment Letters (other than (i) as a sole result of the Company’s breach of this Agreement or (ii) if and for so long as the Company is in breach of its obligations under Agreement and such breach would be the sole cause of the conditions set forth in Section 7.1 or Section 7.2 not to be satisfied) and such portion is necessary to fund the Required Amount on the Closing Date, (i) Parent shall promptly notify the Company in writing of such unavailability and the other transactions contemplated by this Agreementreason therefor and (ii) Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain, as promptly as practicable, alternative financing from the same or alternative sources in an amount sufficient, together with the remaining available Financing to fund the Required Amount on the Closing Date (“Alternative Debt Financing”); provided that Parent shall not be required to arrange or obtain any Alternative Debt Financing having terms and conditions (including market “flex” provisions) that are less favorable to Parent and Merger Sub (or their respective Affiliates) than the terms and conditions set forth in the Debt Commitment Letters and the Redacted Fee Letters. This Section 6.11 Parent shall be deemed to apply deliver to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing Company forthwith if it obtains the same true and references complete executed copies of any commitment letters (including related fee letters) with respect to any Alternative Debt Financing (which fee letters may be redacted in a fashion consistent with the Financing shall be deemed to refer instead to such alternative financingRedacted Fee Letters).
(e) All non-public For purposes of this Agreement, references to (x) the “Financing” shall include the financing contemplated by the Financing Letters as permitted to be amended, modified, supplemented, waived or otherwise confidential information regarding the Company obtained replaced by Parent or its Representatives pursuant to this Section 6.11 6.13 and any Alternative Debt Financing, (y) the “Debt Commitment Letters” shall include such documents as permitted to be kept confidential in accordance amended, modified, supplemented, waived or replaced by this Section 6.13 and any commitment letter or other binding documentation with respect to any Alternative Debt Financing and (z) “Debt Financing” shall include the Confidentiality Agreementdebt financing contemplated by the Debt Commitment Letters as permitted to be amended, modified, supplemented, waived or replaced by this Section 6.13 and any Alternative Debt Financing.
Appears in 2 contracts
Samples: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Cornerstone Building Brands, Inc.)
Financing. (a) Parent covenants Subject to the terms and agrees with the Companyconditions of this Agreement, on behalf each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have fundsSubsidiary shall use, and shall cause their Affiliates to 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 the Debt Financing as promptly as practicable on the terms and conditions described in the aggregateDebt Commitment Letters, sufficient for including using (and causing their Affiliates to use) their respective reasonable best efforts to: (i) maintain in effect the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU AwardsFinancing Commitments, (ii) provide to the funding of any required refinancings or repayments of any existing indebtedness Company a list of the information and the assistance required from the Company or for Parent to prepare the Required Financial Information as promptly as practicable (and in connection with any event not later than 10 Specified Business Days) after the Merger or the Financing, and date hereof; (iii) provide the payment of Required Financial Information to the Debt Financing Sources as promptly as practicable after the date hereof, (iv) negotiate definitive agreements with respect thereto as promptly as practicable after the date hereof substantially on the terms and conditions contained in the Financing Commitments or, with respect to conditions relating to funding, on other terms no less favorable to Parent or Merger Subsidiary, which agreements shall be in effect no later than the Effective Time, (iv) satisfy, or cause their Representatives to satisfy, on a timely basis all fees and expenses and other payment obligations required conditions applicable to Parent, Merger Subsidiary or their respective Representatives in such definitive agreements to be paid or satisfied by Parent, Merger Sub Subsidiary or their respective Representative, and (v) cause the Surviving Entity in connection with Debt Financing Parties and any other Persons providing Debt Financing to fund the Merger and Debt Financing at or prior to the FinancingEffective Time.
(b) The Company shall, Parent shall cause its Subsidiaries not agree to, and shall use its reasonable best efforts to cause each of its and their respective Representativesor permit, including legal, tax, regulatory and accounting, any amendments or modifications to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with or any waivers under, the Financing (provided that such requested cooperation does not unreasonably interfere with Commitments without the ongoing operations prior written consent of the Company and its Subsidiaries)if such amendments, modifications or waivers would reduce the aggregate amount of the Debt Financing (including using reasonable best efforts by changing the amount of fees to be paid or original issue discount of the Debt Financing) such that after giving effect to such amendment, the Parent would not have sufficient funds under the amended Financing Commitments, together with any cash on hand, to consummate the Merger, or impose new or additional conditions or otherwise expand the then existing conditions precedent to funding of the Debt Financing at or prior to the Effective Time, if such new or additional conditions or such expanded existing conditions would reasonably be expected to (i) provide information relating prevent or materially delay or impair the ability of Parent to consummate the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period Merger or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent or Merger Subsidiary to enforce its rights against the other parties to the Financing Commitments; provided that, for the avoidance of doubt, each of Parent and Merger Subsidiary may amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation as of the date hereof; provided further that, without derogating from any of the Company’s other obligations under Section 6.08, the Company shall have no obligation to comply with Section 6.08 of this Agreement in connection with such amendments.
(c) In the event that Parent determines that any portion of the Debt Financing will not be available in the manner or from the sources contemplated in the Financing Commitments, (i) Parent shall promptly so notify the Company and (ii) Parent and Merger Subsidiary shall 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 other transactions contemplated by this Agreement. This Section 6.11 shall be deemed Agreement that includes conditions to apply funding not materially less favorable to Parent than those in the Financing Commitments, as promptly as practicable following the occurrence of such event (and in any event no later than the Effective Time).
(d) Each of Parent and Merger Subsidiary acknowledges and agrees that neither the obtaining of the Debt Financing or any alternative financing, nor the completion of any issuance of securities contemplated by the Debt Financing or any alternative financing, is a condition to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingClosing.
(e) All non-public or otherwise confidential information regarding Parent shall (i) promptly furnish the Company obtained complete, correct and executed copies of the Financing Commitments and any amendment, modification or replacement of any Financing Commitments promptly upon their execution (provided, that provisions in such fee letter(s) related to fees and pricing may be redacted (none of which redacted provisions adversely affect the availability of, or impose additional conditions on the availability of, the Debt Financing at the closing)), (ii) give the Company prompt written notice of any breach or threatened (in writing) breach by any party of any of the Financing Commitments or the Financing Commitment of which Parent or its Representatives pursuant Merger Subsidiary becomes aware or any termination or threatened (in writing) termination thereof, (iii) after the receipt of any written notice or other written communication received from any Debt Financing Party, give the Company prompt written notice of any material dispute or disagreement between or among any parties to any Financing Commitment that would reasonably be expected to result in a breach under the Financing Commitment, (iv) give the Company prompt written notice if for any reason Parent or Merger Subsidiary has determined in good faith that it will not be able to obtain all or any portion of the Debt Financing on substantially the terms and conditions contemplated by the Financing Commitments, (v) promptly furnish any additional information reasonably requested in writing by the Company relating to the circumstances in clauses (i) through (iv) of this Section 6.11 shall be kept confidential in accordance with 7.04(e)) and (vi) keep the Confidentiality AgreementCompany reasonably informed of the status of its efforts to arrange the Debt Financing (or any alternative financing).
Appears in 2 contracts
Samples: Merger Agreement (NICE Ltd.), Merger Agreement (inContact, Inc.)
Financing. (a) Each Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Party shall use its reasonable best efforts to obtain, or cause each to be obtained, the proceeds of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing on the terms and conditions described in the Commitment Letters (provided that such requested cooperation does not unreasonably interfere with including, as necessary, the ongoing operations of “flex” provisions contained in the Company and its SubsidiariesFee Letter), including using its reasonable best efforts with respect to (i) provide information relating maintaining in effect the Commitment Letters, (ii) negotiating definitive agreements with respect to the Company Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in the Fee Letter) or, if available, on other terms that are acceptable to Parent and would not adversely affect (including with respect to timing, taking into account the expected timing of the Marketing Period) the ability of the Parent Parties to consummate the transactions contemplated herein, and (iii) taking into account the expected timing of the Marketing Period, satisfying on a timely basis all conditions applicable to Parent and its Subsidiaries to obtaining the Financing Sources that is reasonably available are within the Parent Parties’ control. In the event that all conditions contained in the Debt Commitment Letter and the Securities Purchase Agreement (other than, with respect to the Company and is customary for completion Debt Financing, the availability of the Equity Financing, the Subordinated Securities Financing, the MSDC Financing by or the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availableRollover Investment and, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior with respect to the Closing Date and information regarding Subordinated Securities Financing, the businessDebt Financing, operations and financial projections of the CompanyEquity Financing, the MSDC Financing or the Rollover Investment) have been satisfied (or upon funding will be satisfied), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries Party shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash timely cause the Lenders and marketable securities of the Company Subordinated Securities Purchaser to fund the Debt Financing and the Subordinated Securities Financing, as applicable (including by seeking through litigation to enforce its Subsidiaries to be made available to Parent and/or Merger Sub at rights under the ClosingDebt Financing Commitment Letter and Definitive Agreements and the Securities Purchase Agreement, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiariesas applicable).
(cb) Notwithstanding The Parent Parties shall not, without the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence written consent of the Company, (i) terminate any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter, unless such Commitment Letter is amended, replaced, supplemented or otherwise modified, including as replaced in a result of obtaining alternative financingmanner consistent with the following clause (ii), or if Parent substitutes other debt (ii) permit any amendment or equity financing for all modification to, or a portion any waiver of the Financingany material provision or remedy under, or replace, the Company shall comply with its covenants in Section 6.11(bCommitment Letters if such amendment, modification, waiver, or replacement (w) with respect would (1) add any new condition to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new Financing Commitments (or modify, modify any existing condition in a manner adverse to Parent) or otherwise that would be reasonably expected to adversely affect (including with respect to timing, any existing) conditions precedent or contingencies to taking into account the funding on the Closing Date expected timing of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (BMarketing Period) adversely impact the ability of the Parent Parties to enforce its rights against other parties to consummate the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall Agreement or the likelihood of the Parent Parties doing so, or (2) taking into account the expected timing of the Marketing Period, would be deemed reasonably expected to apply to make the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to timely funding of any of the Financing shall be deemed or satisfaction of the conditions to refer instead obtaining any of the Financing less likely to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.occur,
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Dell Inc)
Financing. (a) Immediately following the date hereof, TopCo Parent covenants shall use its commercially reasonable efforts to take, or cause to be taken, all actions and agrees with to do, or cause to be done, all things necessary, advisable or proper to obtain the Company, on behalf of itself Pre-Emptive Rights Waiver as soon as practicable following the date hereof (and its Subsidiaries, that it shall take all action necessary to ensure that as in any event within thirty (30) Business Days of the Closing Datedate hereof).
(b) TopCo Parent, Parent and Merger Sub will have fundsshall use their commercially reasonable efforts to take, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required or cause to be paid pursuant taken, all actions and to Article IIdo, the aggregate amount of cash or cause to be deposited pursuant done, all things necessary, advisable or proper to Section 1.7(b) in respect of the Reserved Company Common Stock, arrange and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing contemplated by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period Letters on or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date on the terms and information regarding conditions described in the businessFinancing Letters, operations including to: (i) maintain in effect and financial projections comply with the Financing Letters and any Definitive Financing Agreements in accordance with their terms until the funding of the Company), Financing to TopCo Parent or one or more of its Affiliates that are within its control on the Closing Date; (ii) participate and cause senior management to participate in satisfy on a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating timely basis all conditions to the completion funding of the Financing by set forth in the Financing Sources, Letters and the Definitive Financing Agreements applicable to TopCo Parent or one or more of its Affiliates that are within its control; (iii) assist negotiate and enter into additional definitive debt financing agreements to the extent necessary (including the entrance into amended and/or restated versions of already existing definitive debt facility agreements) on the terms and conditions contemplated by the Debt Letters (the “Definitive Debt Financing Agreements”) and definitive equity financing agreements on the terms and conditions contemplated by the Equity Letters (the “Definitive Equity Financing Agreements” and together with the Definitive Debt Financing Agreements, the “Definitive Financing Agreements”); and (iv) subject to the satisfaction or waiver of the Financing Conditions, cause the Financing Sources to consummate the Financing, and fund the amounts thereunder on the Closing Date. TopCo Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the preparation status of its efforts to arrange the Financing and to satisfy the conditions thereof. TopCo Parent will promptly provide to the Company copies of all Definitive Financing Agreements. TopCo Parent shall give the Company prompt written notice after the occurrence of any of the following: (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for material breach or material default by any party to the Financing, and Financing Letters or definitive agreements related to the Financing of which TopCo Parent becomes aware; (B) materials for rating agency presentationsthe receipt by TopCo Parent, Parent or Merger Sub of any written notice or written communication from any Financing Source with respect to any actual or potential breach, default, termination or repudiation by any party to a Financing Letter or any definitive agreements related to the Financing or of any provisions of any Financing Letter or such definitive agreements; (ivC) cooperate with the marketing efforts for any component material dispute or disagreement between or among any parties to any of the Financing (including consenting Letters or any Definitive Financing Agreement with respect to the use conditionality or amount 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 Financing or the reputation obligation to fund the Financing or goodwill the amount of the Company or any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to funded at the Closing (but excluding ordinary course negotiations); (D) if for any reason, TopCo Parent, Parent and/or or Merger Sub at the Closing, provided that the Company shall any time believes it will not be prohibited from using cash able to obtain all or any portion of the Financing in an amount sufficient to consummate the Offer, the Merger and marketable securities the other Contemplated Transactions; and (E) any fact, change, event or circumstance that could reasonably be expected to prevent or materially delay or impede the consummation of the Offer, the Merger or the Financing contemplated by the Financing Letters. In the event that all conditions contained in the ordinary course or from taking any action not prohibited by Section 5.1Financing Letters (other than, (viii) provide customary authorization letters with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied and Parent is required to consummate the Closing pursuant to Section 2.04, TopCo Parent shall use its commercially reasonable efforts to cause each Financing Sources authorizing the distribution Source to fund its respective portion of information to prospective lenders and containing a representation to the Financing Sources that required to consummate the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable transactions contemplated by this Agreement and to pay related fees and expenses on the extent not unreasonably interfering with the business of the Company and its SubsidiariesClosing Date.
(c) Notwithstanding Prior to the foregoingClosing, until the Effective Time occursTopCo Parent, neither the CompanyParent and Merger Sub shall not, and Parent shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its Subsidiariesrights, nor their respective Representativesprovisions or remedies under, the Financing Letters or Definitive Financing Agreements without the Company’s prior written consent which consent shall not be unreasonably withheld; provided, that TopCo Parent, Parent and Merger Sub may, without the Company’s prior written consent, (i) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Letters or Definitive Debt Financing Agreements that would not, and would not reasonably be expected to, reduce the aggregate amount of the Debt Financing below an amount, together with the Equity Financing, and any available cash of TopCo Parent, the Company and their respective Subsidiaries, required to take any action in pay the capacity of a director Merger Amounts, or prevent, materially delay or impede the consummation of the Company Offer, the Merger or the Debt Financing contemplated by the Debt Letters; and (ii) amend, replace, supplement or otherwise modify the Debt Letters to add lenders, lead arrangers, book runners, syndication agents or similar entities that had not executed the Debt Letters as of the date hereof so long as any such addition would not reasonably be expected to prevent, materially delay or impede the consummation of its Subsidiaries the Offer, the Merger or the Debt Financing contemplated by the Debt Letters, but only, with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent foregoing clauses (i) shall promptlyand (ii), upon request by to the Companyextent doing so would not (x) impose new or additional conditions or expand, reimburse amend or modify any existing condition to the Company for all reasonable receipt and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation availability of the Company and Debt Financing in a manner that would reasonably be expected to prevent or materially delay or impede the ability of Parent to consummate the Closing or (y) adversely impact the ability of TopCo Parent, Parent or Merger Sub, as applicable, to enforce its Subsidiaries contemplated by this Section 6.11rights against the Debt Financing Sources under the Debt Letters. Upon any such amendment, (ii) acknowledges and agrees thatreplacement, except for obligations of the Company’s Subsidiaries from and after the Effective Timesupplement or modification, the Companyterm “Debt Letters” and “Definitive Debt Financing Agreements” shall mean the Debt Letters or Definitive Debt Financing Agreements, its Subsidiaries and their respective Representatives shall not have any responsibility foras applicable, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing modified. TopCo Parent shall promptly deliver to the same extent that the Company would have been obligated to comply with respect to the Financingcopies of any such amendment, providedreplacement, that the Commitment Letter as so amended, replaced, supplemented supplement or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date modification of the Financing as set forth in the Commitment Letter Debt Letters or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Debt Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (CSS Industries Inc), Merger Agreement (Ig Design Group Americas, Inc.)
Financing. (a) Parent covenants and agrees with the CompanyPurchaser will have, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing respective dates of consummation of the Offer (including any subsequent offering period), access to sufficient funds to consummate the Offer (including any subsequent offering period) on the terms and subject to the conditions contemplated hereby, and for the payment to the Company of funds sufficient to pay holders of Company Options in accordance with the provisions of Section 6.7.
(b) Parent has delivered to the Company a complete and correct copy of the executed commitment letter, dated as of the date hereof, from Barclays Bank PLC (collectively, the “Financing Commitment”) pursuant to which the lender party thereto has committed to provide, subject to the terms and conditions set forth therein and the conditions set forth in the Purchaser Credit Facility, debt financing in an aggregate amount set forth therein (the “Financing”). Parent has also delivered to the Company complete and correct copies of any fee letters (redacted to exclude fees and certain other information at the request of the Financing Sources party thereto) (the “Fee Letters”) in connection with the Financing Commitment and the Purchaser Credit Facility and, as of the Agreement Date, except as would not reasonably be expected to materially impair the validity of the Financing Commitment, materially impact the availability of the Financing or materially decrease the amount of financing that could be expected to be provided under the Financing Commitment, there are no Contracts, agreements, side letters or arrangements to which Parent or Purchaser is a party relating to the funding or investing, as applicable, of the amount of the Financing other than as expressly set forth in the Financing Commitment, Fee Letters and Purchaser Credit Facility.
(c) As of the date hereof, the Financing Commitment has not been amended or modified, no such amendment or modification is presently contemplated, and the respective obligations and commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Parent or Purchaser has fully paid any and all commitment fees or other fees in connection with the Financing Commitment that are payable on or prior to the date hereof, and, as of the date hereof, the Financing Commitment is in full force and effect and are the valid, binding and enforceable obligations of Parent and Merger Sub will have fundsPurchaser (except as such enforceability may be (i) limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors’ rights generally and (ii) the exercise by courts of equity powers) and, to the knowledge of Parent and Purchaser, the other parties thereto.
(d) Assuming the satisfaction or waiver of the conditions to Parent’s and Purchaser’s obligation to consummate the Offer (including any subsequent offering period), the net proceeds of the Financing if funded in accordance with the Financing Commitments, together with Parent’s consolidated cash and cash equivalents and borrowings under Purchaser Credit Facility are, in the aggregate, sufficient for (i) the payment of Purchaser to pay the aggregate Cash Consideration Offer Price, consummate the transactions contemplated by this Agreement and any other amounts pay all fees and expenses required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings by Parent or repayments of any existing indebtedness of the Company or Parent Purchaser in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger Offer and the Financing.
(be) The Company shallAs of the date of this Agreement, shall cause its Subsidiaries tono event has occurred which, and shall use its reasonable best efforts to cause each with or without notice, lapse of its and their respective Representativestime or both, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by would constitute a default or breach on the part of Parent with reasonable notice in connection with or Purchaser under the Financing (provided that such requested cooperation does not unreasonably interfere with Commitments or, to the ongoing operations knowledge of Parent and Purchaser, any other party thereto. As of the Company and its Subsidiaries)date of this Agreement, including using reasonable best efforts neither Parent nor Purchaser has any reason to (i) provide information relating to believe that any of the Company and its Subsidiaries conditions to the Financing Sources will not be satisfied or that is reasonably available to the Company and is customary for completion full amount of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period will not be available to Parent or periods of the Company ended after Purchaser on the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingOffer.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Tender Offer Agreement, Tender Offer Agreement (Jazz Pharmaceuticals PLC)
Financing. (a) Parent covenants Subject to the terms and agrees with the Companyconditions of this Agreement, on behalf each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its arrange and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing (provided that such requested cooperation does not unreasonably interfere with on the ongoing operations of terms and conditions described in the Company and its Subsidiaries)Financing Documents, including using reasonable best efforts to (i) provide information relating to negotiate and enter into the Company Debt Financing Agreement with respect to, and its Subsidiaries to on the Financing Sources that is terms and conditions contained in, the term sheet set out in the Debt Commitment Letter as promptly as reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended practicable after the date hereof, the terms and conditions of which shall not impose new or additional conditions, or otherwise enhance or expand upon or adversely modify the conditions to the closing of the most recent audited financial statements and at least 40 days prior to Debt Financing contained in the Closing Date and information regarding the business, operations and financial projections of the Company)Debt Commitment Letter, (ii) participate maintain in full force and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of effect the Financing by the Financing SourcesDocuments, (iii) assist satisfy on a timely basis all conditions in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentationsDebt Financing Agreement, (iv) cooperate with fully enforce its rights under the marketing efforts for Debt Financing Agreement and (v) consummate the Financing at the Closing. In the event any component portion of the Financing (including consenting to becomes unavailable on the use of the Company’s terms and its Subsidiaries’ logos; provided that such logos are used solely conditions contemplated 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective TimeFinancing Documents, (vix) use its reasonable best effortsParent shall promptly so notify the Company, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (viiy) each of Parent and Merger Sub shall use its reasonable best efforts to permit arrange and obtain promptly any cash and marketable securities such portion from alternative debt financing (the “Alternative Financing”) in an amount sufficient, when added to the portion of the Company Financing that is available and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligenceCash Financing, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with consummate the transactions contemplated by this Agreement on terms and conditions not less favorable, taken as a whole, to Parent and Merger Sub (as determined in the reasonable judgment of Parent) than those in the Debt Commitment Letter or the Debt Financing Agreement) . Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and, if applicable, the Alternative Financing and shall deliver to the Company as promptly as practicable after such Representative believes execution, true and complete copies of all Contracts or other arrangements (including fee letters), under which any such action would be inconsistent with their fiduciary dutiesAlternative Financings is provided, except for any such Contracts or other arrangements that do not impact the conditionality of the Alternative Financing (the “Alternative Financing Agreements”). To the extent applicable, the obligations of each of Parent and Merger Sub in clauses (ii) be required to pay any commitment or other similar fee, (iiiv) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (iSection 6.14(a) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) apply with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified Alternative Financing 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Alternative Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Ren Jinsheng), Merger Agreement (Simcere Pharmaceutical Group)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its (a) negotiate definitive agreements with respect to the Financings on the terms and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested conditions contemplated by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries)Commitments or, including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to extent the Financing Sources that is reasonably Commitments are not available to Parent, on other terms not materially less favorable, in the Company aggregate, to Parent (as determined in the reasonable judgment of Parent) and is customary for completion (b) satisfy on a timely basis all conditions set forth in such Financing Commitments applicable to Parent and Merger Sub that are within their control. If any portion of the Financing by Commitments becomes unavailable on the terms and conditions contemplated in the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availableCommitments, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of arrange to obtain alternative financing from alternative sources on terms not materially less favorable, in the Company and its Subsidiaries to be made available aggregate, to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities (as determined in the ordinary course or from taking any action not prohibited by Section 5.1, (viiireasonable judgment of Parent) provide customary authorization letters to as promptly as practicable following the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Financing Sources that the public side versions occurrence of such documents, if any, do not include material non-public information about the Company or its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, event; provided, that consummating the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall Financings is not (A) add new (or modify, in a manner adverse condition to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date consummation of the Financing as set forth in the Commitment Letter Offer or the definitive agreements with respect thereto on terms Merger and conditions contemplated by Parent shall draw down each Financing Commitment in full and without condition in order to consummate the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of Offer and the Merger and the other transactions contemplated hereby. Parent shall give the Company prompt notice of any material breach by this Agreementany party to any Financing Commitment, of which Parent becomes aware, or any termination of any Financing Commitment. This Section 6.11 The Company shall be deemed use reasonable efforts to apply cooperate, and to cause its Subsidiaries and Representatives to cooperate, with Parent and Representatives of Parent in connection with obtaining the Commitment Letter as so amendedFinancing, replacedincluding, supplemented or otherwise modified and/or such other debt or equity financing without limitation, participating in the preparation of any pro forma financial statements, the preparation of rating agencies presentations, the preparation of any comfort letters and references to offering memoranda and registration statements, and, at Parent’s request and expense, marketing efforts conducted in connection with the Financing shall be deemed to refer instead to such alternative financingFinancings.
(eb) All non-public Parent and Merger Sub shall use reasonable best efforts to take (or otherwise confidential information regarding cause to be taken) all actions, and do (or cause to be done) all things necessary or advisable to obtain the Company obtained Financing contemplated by each Financing Commitment and, subject to Section 4.5, to fully enforce each Financing Commitment, including but not limited to (i) maintaining in effect each Financing Commitment without any amendment, alteration, or waiver that impairs Parent’s ability to provide the funds necessary to complete the Offer and the Merger, (ii) satisfying on a timely basis all conditions applicable to Parent and Merger Sub set forth in each Financing Commitment that are material to the completion of the Financings and (iii) consummating the Financings contemplated by each Financing Commitment (or its Representatives pursuant any alternative financing contemplated by an Alternative Financing Commitment) at or prior to this Section 6.11 shall be kept confidential in accordance with the Confidentiality AgreementAcceptance Date.
Appears in 2 contracts
Samples: Merger Agreement (AMICAS, Inc.), Merger Agreement (Merge Healthcare Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing DateHoldco, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and 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 and obtain the Financing on the terms and conditions described in the Financing Commitments, including by (i) maintaining in effect the Financing Commitments, (ii) satisfying on a timely basis all conditions applicable to Holdco, Parent and Merger Sub in the Financing Commitments that are within their control, including without limitation paying when due all commitment fees and other fees arising under the Financing Commitments as and when they become due and payable thereunder, and (iii) consummating the financing contemplated by the Financing Commitments at or prior to the Effective Time. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, (x) Holdco, Parent and Merger Sub shall promptly notify the Company and (y) Holdco, Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions that are not less favorable in any material respect (as determined by Parent) than the terms and conditions set forth in the Debt Commitment Letter as promptly as practicable following the occurrence of such event (the “Alternative Financing”). If any Parent Party becomes aware of the existence of any fact or event that would reasonably be expected to cause the Debt Financing to become unavailable on the terms and conditions contemplated by the Debt Commitment Letter, Holdco, Parent and Merger Sub shall use their reasonable best efforts to either cure or eliminate such fact or event, or to arrange and obtain the Alternative Financing. The Parent Parties shall promptly provide a true and complete copy of each alternative financing agreement (together with a redacted copy of any related fee letter) to the Company.
(b) None of Holdco, Parent nor Merger Sub shall amend, alter or waive, or agree to amend, alter or waive, any term of the Financing Commitments without the prior written consent of the Company Board if such amendments, alterations or waivers would (i) reduce the aggregate amount of the Debt Financing, or (ii) impose new or additional conditions that would reasonably be expected to prevent or materially delay the ability of Holdco, Parent or Merger Sub to consummate the Merger; provided, that notwithstanding any other provision of this Agreement, Holdco, Parent and Merger Sub shall be entitled from time to time to (x) amend, restate, supplement, replace, substitute or otherwise modify, or waive any of its rights under, the Financing Commitments and/or replace or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, subject to clauses (i) and (ii) above, and (y) amend, restate, supplement, replace, substitute or otherwise modify the Debt Commitment Letter for the purposes of adding agents, co-agents, lenders, managers, co-managers, arrangers, bookrunners or other Persons that have not executed the Debt Commitment Letter as of the date hereof so long as such amendment, restatement, supplement, replacement substitution or modification is otherwise in compliance with this Section 6.14(b). The Parent Parties shall promptly notify the Company of (i) the expiration or termination of any Financing Commitment, (ii) any breach of any material provisions of any of the Financing Commitments by any party thereto or (iii) any refusal by the parties to the Financing Commitments to provide the full financing contemplated by the Financing Commitments.
(c) Holdco, Parent and Merger Sub acknowledge and agree that the obtaining of the Financing (including any Alternative Financing) is not a condition to the Closing, and reaffirms its obligation to consummate the Merger and the other transactions contemplated hereby, irrespective and independent of the availability of the Financing, subject to the applicable conditions set forth in Article VII and the requirements of Section 1.02.
(d) Prior to the Effective Time, the Company agrees to use reasonable best efforts to provide, and shall cause each Subsidiary of its the Company and each of their respective Representativesofficers, including legalemployees and representatives to use reasonable best efforts to provide, taxto Holdco, regulatory Parent and accountingMerger Sub (at Parent’s sole cost and expense), to, provide all reasonable cooperation as may be reasonably requested by the Parent with reasonable notice Parties or their Representatives in connection with the Debt Financing and any Alternative Financing, including, without limitation, (provided that such requested cooperation does not unreasonably interfere i) participating in a reasonable number of meetings, presentations, due diligence sessions, road shows, sessions with the ongoing operations rating agencies and other meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the Company with representatives of the Parent Parties and its Subsidiariestheir Debt Financing and/or Alternative Financing sources, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda (including a public side version which does not contain non-publicly available information), prospectuses, rating agency presentations and similar documents reasonably requested by the Parent Parties or their Representatives in connection with the Debt Financing and/or Alternative Financing (including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the FinancingDebt Financing and/or Alternative Financing and delivery of one or more customary representation letters), or (iii) promptly furnishing the Parent Parties and their Debt Financing and/or Alternative Financing sources with financial and other documents pertinent information regarding the Company and instruments ancillary to the Financing its Subsidiaries as may be reasonably requested by the Parent as customary in connection with the FinancingParties and their Debt Financing and/or Alternative Financing sources, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreementsincluding, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreementswithout limitation, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of all financial statements and financial and non-financial information regarding the Company and its Subsidiaries as may be reasonably requested by the Parent Parties and of the type and form customary for the placement, arrangement and/or syndication of loans or distribution of debt contemplated by (or otherwise required as a condition to funding under) the Debt Commitment Letter (the information required to be delivered in this clause (iii), the “Required Information”), (iv) cooperating with advisors, consultants and accountants of the Parent Parties or their Debt Financing sources with respect to the conduct of any examination, appraisal or review of the financial condition or any of the assets or liabilities of the Company or any Subsidiary of the Company, including for the purpose of establishing collateral eligibility and values, (v) using reasonable best efforts to obtain accountants’ comfort letters and legal opinions as may be reasonably requested by the Parent Parties, (vi) executing and delivering any pledge and security documents, commitment letters, underwriting or placement agreements or other definitive financing documents conditioned upon Closing, or other ancillary documentation including certificates, legal opinions or documents as may be reasonably requested by the Parent Parties or their Representatives (including a certificate of the chief financial officer of the Company or any borrower Subsidiary of the Company with respect to solvency matters) or otherwise facilitate the pledging of collateral, the delivery of pay-off letters and other cooperation in connection with the pay-off of existing Indebtedness and release of all related Liens, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing and/or any Alternative Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establishing bank and other accounts (including escrow accounts), blocked account agreements and lock box arrangements in connection with the foregoing, provided that such accounts, agreements and arrangements shall not become active or take effect until the Effective Time, (viviii) use its reasonable best effortsentering into one or more credit or other agreements on terms satisfactory to the Parent Parties in connection with the Debt Financing and/or any Alternative Financing immediately prior to the Effective Time, as appropriate, to have its independent accountants provide their reasonable cooperation provided that such agreements and assistancearrangements shall not become active or take effect until the Effective Time, (viiix) use furnishing Holdco, Parent, Merger Sub and its Representatives promptly with all documentation and other information required with respect to the Debt Financing and/or any Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations and (x) furnishing Holdco, Parent, Merger Sub and its Representatives promptly upon its request with a list of contractual arrangements existing as of a date specified by Holdco, Parent, Merger Sub or its Representative pursuant to which the Company has an obligation to sell, lease, license, surrender, transfer, lend or otherwise dispose of such assets, in reasonable best efforts details and furnishing Holdco, Parent, Merger Sub and its Representatives such supporting documents requested thereby.
(e) The Company will take all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or any Alternative Financing, including without limitations the execution and delivery of any other certificates, instruments or documents, and to permit the proceeds thereof, together with cash and marketable securities of at the Company and its Subsidiaries Subsidiaries, to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in on the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters Closing Date to consummate the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Merger. The Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, promptly notify Parent if any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of information furnished by the Company or any of its Subsidiaries with respect pursuant to this Section 6.14(c) is or becomes inaccurate, incomplete or misleading in any material respect. Neither the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) Company nor any of its Subsidiaries shall be required to pay any commitment fee or other similar fee, (iii) have fee or incur any liability with respect to the Debt Financing or any obligation under any credit agreement or any related document or any other agreement or document related Alternative Financing prior to the Financing (or alternative financing that Parent may raise Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the transactions contemplated by this Agreement) or (iv) be required to incur Debt Financing and/or any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement)Alternative Financing. Parent (i) shall promptlyshall, promptly upon request by the Company, reimburse (or cause the applicable borrowers to reimburse) the Company for all reasonable and documented out-of-pocket costs and expenses actually (including reasonable attorneys’ fees) incurred by the Company, Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii6.14(d) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 liabilities or losses suffered or incurred by any of them prior to the Effective Time in connection with the arrangement of the Debt Financing or Alternative Financing and any information utilized used in connection therewith (other than historical except with respect to any information relating to provided by or on behalf of the Company or any of its Subsidiaries and information provided by the Company, its Subsidiaries or their RepresentativesSubsidiaries), except in the event that such losses, damages, claims, costs liabilities or expenses arise losses arose out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or any of their respective Representatives.
(df) In Nothing in this Section 6.14 or any other provision of this Agreement shall require, and in no event shall the event “reasonable best efforts” of Holdco, Parent or Merger Sub be deemed or construed to require, Holdco, Parent or Merger Sub to (i) seek the Equity Financing from a source other than the Sponsors or in any amount in excess of that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Equity Commitment Letter (any such agreements the “Definitive Financing Agreements”)Letter, (Bii) adversely impact the ability waive any term or condition of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreementsthis Agreement, or (Ciii) prevent, impede commence any legal action or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity proceeding against any financing and references to the Financing shall be deemed to refer instead to such alternative financingsource.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
Financing. (a) Parent covenants shall use, and agrees shall cause its affiliates 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 keep the financing commitment in full force and effect and to arrange the Financing on the terms and conditions described in the Financing Commitment, including using reasonable best efforts (i) to negotiate and enter into, and keep in effect, the definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitment (or on other terms acceptable to Parent, provided such terms do not contain any conditions to funding on the Offer Closing Date and the Closing Date that are not set forth in the Financing Commitment and would not otherwise reasonably be expected to impair or delay the consummation of the Financing), (ii) to satisfy (or cause its affiliates to satisfy) on a timely basis all conditions applicable to Parent and its subsidiaries to obtaining the Financing set forth in the Financing Commitment that are within their control and to otherwise comply with all of their obligations under the Financing Commitments, and (iii) to consummate the Financing contemplated by the Commitment Letter at or prior to the Offer Closing and the Closing, as applicable, including using its reasonable best efforts to cause the lenders and the other persons providing such Financing to fund the Financing required to consummate the Offer at the Offer Closing and the Merger at the Closing (including seeking specific performance to cause the Financing to be consummated in accordance with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Financing Commitments). Parent and Merger Sub shall keep the Financing Commitment in full force and effect and not modify, amend, waive, supplement or otherwise alter the Financing Commitment or the definitive agreements with respect thereto or any of the terms thereof, except that Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of their rights under, the Financing Commitment or the definitive agreements with respect thereto, and/or substitute other debt or equity financing for all or any portion of the Financing Commitment 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 Financing Commitment or such definitive agreements that amends the Financing Commitment and/or substitution of all or any portion of the Financing shall not (A) expand upon the conditions precedent to the Financing as set forth in the Financing Commitment or (B) prevent, impede or delay the consummation of the Offer and the Merger and the other Transactions. Parent shall be permitted to reduce the amount of Financing under the Financing Commitment or the definitive agreements with respect thereto in its reasonable discretion; provided, that Parent shall not reduce the Financing to an amount committed below the amount that is required to consummate the Offer and the Merger and the other Transactions; and provided further that such reduction shall not (I) expand upon the conditions precedent to the Financing as set forth in the Financing Commitment or (II) prevent, impede or delay the consummation of the Offer and the Merger and the other Transactions. In the event that 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 set forth in the Financing Commitment and such portion is reasonably required, together with the financial resources of Parent, including cash on hand, marketable securities and the proceeds of loans under existing revolving credit facilities of Parent or its subsidiaries, to consummate the Offer and the Merger and the other Transactions, Parent shall notify the Company within 24 hours, and Parent shall use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (“Alternative Financing”) on terms that will have fundsstill enable Parent to consummate the Transactions; provided, that without the prior written approval of the Company, no such alternative financing shall be on terms and conditions (including any “flex” provisions and conditions to funding) that are not, in the aggregate, sufficient for at least as favorable to Parent and the Company (ias determined in the reasonable judgment of Parent) as those in the payment Financing Commitment and otherwise in compliance with this Agreement. Parent shall deliver to the Company true and complete copies of all agreements related to such Alternative Financing (excluding fee letters and engagement letters, except to the extent that such documents contain any conditions to funding or “flex” provisions (excluding provisions related solely to fees and economic terms agreed to by the parties)). 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 aggregate Cash Consideration and conditions contained in the Financing Commitment or in any other amounts required definitive agreement related to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect Financing. Parent shall keep the Company reasonably informed on a current basis of the Reserved Company Common Stock, and the aggregate amount status of cash its efforts to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or obtain the Financing, and (iii) promptly provide the payment Company copies of all documents related to the Financing (excluding fee letters and engagement letters, except to the extent that such documents contain any conditions to funding, “flex” provisions or other substantive provisions (excluding provisions related solely to fees and expenses economic terms agreed to by the parties)) or regarding the terms and other payment obligations required conditions of the Financing and give the Company notice of any material breach by any party to the Financing Commitment of which Parent becomes aware or any termination of the Financing Commitment, such notice to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financinggiven within 24 hours after Parent becomes so aware.
(b) The Company shallshall provide, shall cause its the Company Subsidiaries to, to provide and shall use its commercially reasonable best efforts to cause each of its and their respective the Company Representatives, including legal, tax, regulatory and accounting, to, to provide all such reasonable cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such as may be reasonably requested cooperation does not unreasonably interfere with the ongoing operations by Parent or any provider of the Company and its Subsidiaries)Financing or any Alternative Financing, including using reasonable best efforts to including, but not limited to, (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate participation in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing Sources or any Alternative Financing and other senior management and Representatives, with appropriate seniority and expertise, of the Company), drafting sessions, presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, (ii) providing Parent and its financing sources with customary financial and other pertinent information regarding the Company and the Company Subsidiaries (including information to be used in each casethe preparation of an information package regarding the business, relating to operations, financial projections and prospects of Parent and the Company customary for such financing or reasonably necessary for the completion of the Financing by the Financing Sources, (iiiParent’s financing sources) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with to consummate the Financing, including any amendments of any (A) all financial statements and financial and other data of the Company’s or its Subsidiaries’ existing credit agreementstype required by Regulation S-X and Regulation S-K under the Securities Act for registered offerings of debt securities, currency or interest hedging agreements; provided that no obligation of any and of the Company type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act (including pro forma financial information and other documents required to satisfy any customary negative assurance opinion, to consummate the Financing at the time or its Subsidiaries shall times the Financing is to be effective under credit agreementsconsummated), loan documents or currency or interest hedging arrangements or amendments (B) all of the information and data related to such existing arrangements of the Company and its Subsidiaries until necessary to satisfy the Effective Time, (virequirements of Sections 1(c) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii3(a) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement Exhibit D of the Financing Commitment and any (C) other documents required to consummate the Financing at the time or times the Financing is to be consummated, and appropriate comparable information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect Financing is consummated prior to the Commitment Letter as so amended, replaced, supplemented or otherwise modified Closing Date (information and with respect data required to such other debt or equity financing be delivered pursuant to the same extent that the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not clauses (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact of this clause (ii) being referred to as the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.“Required Financial Information”)
Appears in 2 contracts
Samples: Merger Agreement (Arch Coal Inc), Merger Agreement (International Coal Group, Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure The Members acknowledge that as of the Closing Datedate hereof the Properties are subject to the Existing Loans. The Administrative Member shall, Parent subject to the provisions of this Agreement, including Section 4.5(a)(2) hereof, cause the Company and Merger Sub will have funds, the Property Owners to comply in all respects with the aggregate, sufficient for (i) the payment terms and provisions of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the FinancingExisting Loans.
(b) The Company shallNotwithstanding any other provision of this Agreement to the contrary, the Blackstone Member shall cause have the unilateral and exclusive right, in its Subsidiaries tosole and absolute discretion, during the period in which voluntary prepayment is permitted under any Indebtedness and shall use its reasonable best efforts on or following the maturity of the Existing Loan or any other Indebtedness with respect to each Property, to cause each 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 its 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 RepresentativesAffiliates 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, including legal, tax, regulatory the Company and accounting, to, provide all cooperation the Members which is reasonably requested by Parent with reasonable notice such Lender in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(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, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence as of the Companyclosing of a Financing relating to any Property, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing Property Management Agreement for all or a portion such Property has been terminated and no Affiliate of the Financing, Glimcher Member is then the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and property manager 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 FinancingProperty, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing GPLP shall not (A) add new (or modify, be required to provide any Glimcher Future Financing Guaranty in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements connection with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingFinancing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Glimcher Realty Trust), Purchase and Sale Agreement (Glimcher Realty Trust)
Financing. (a) Parent covenants and agrees Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions, and shall use reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing on, in the case of clause (iii)(y) below, subject to clauses (A) through (C) of clause (iii) below, the terms and conditions described in the Commitment Letters (including, as necessary, the “flex” provisions contained in any related fee letter) as promptly as possible (taking into account the expected timing of the Marketing Period), but in any event on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof, including by using reasonable best efforts with respect to (i) causing the Equity Investors to maintain in effect the Equity Commitment Letter, (ii) maintaining in effect the Debt Commitment Letter, (iii) negotiating and entering into on the Closing Date definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) (x) consistent with the Companyterms and conditions contained in the Debt Commitment Letter (including, as necessary, the “flex” provisions contained in any related fee letter) or (y) if available, on behalf of itself and other terms that (A) are acceptable to Parent in its Subsidiariessole discretion, that it shall take all action necessary (B) would not reasonably be expected to ensure that as delay (taking into account the expected timing of the Closing DateMarketing Period) or adversely affect the ability of Parent to consummate the transactions contemplated hereby and (C) would otherwise be permitted by Section 5.12(b), and (iv) taking into account the expected timing of the Marketing Period, satisfying (or, if reasonably required to obtain the Financing, seeking the waiver of) on a timely basis all conditions in the Debt Commitment Letter and the Definitive Agreements that are within the control of Parent or Merger Sub and complying with its obligations thereunder. In the event that all conditions contained in the Debt Commitment Letter or the Definitive Agreements (other than the consummation of the Merger and other than the availability of the Cash Equity and those that by their nature are to be satisfied at the Closing) have been satisfied or waived, Parent and Merger Sub will have fundsshall use their reasonable best efforts to cause the Lenders thereunder to comply with their respective obligations thereunder, in including to fund the aggregateDebt Financing (including, sufficient for (i) the payment subject to Section 8.7(c), by promptly commencing a litigation proceeding against any breaching Lender or other financial institution to compel such Lender or financial institution to provide its portion of the aggregate Cash Consideration Debt Financing or otherwise comply with its obligations under the Debt Commitment Letter or Definitive Agreements). Each of Parent and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of comply with its respective obligations, and their enforce its respective Representativesrights, including legalunder the Commitment Letters and Definitive Agreements in a timely and diligent manner.
(b) Parent shall not, tax, regulatory and accounting, shall not permit Merger Sub to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with without the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations prior written consent of the Company and its Subsidiaries), including using reasonable best efforts to Company: (i) provide information relating to permit any amendment or modification to, or any waiver of any provision or remedy under, the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availableCommitment Letters if such amendment, unaudited financial statements (excluding footnotes) for any interim period modification or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of waiver (A) adds new (or adversely modifies any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (Bexisting) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting conditions to the use consummation 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 all or any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, (B) reduces the Company shall comply with its covenants in Section 6.11(b) with respect amount of the Financing to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing to the same extent an amount that the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of be less than the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”)Merger Amounts, (BC) adversely impact affects in a material respect the ability of Parent to enforce its rights against other parties to the Commitment Letter Letters or the Definitive Financing AgreementsAgreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Commitment Letters as in effect on the date hereof or (CD) could otherwise reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement (taking into account the expected timing of the Marketing Period); or (ii) terminate any Commitment Letter or any Definitive Agreement unless such Commitment Letter or Definitive Agreement is replaced at such time with a new commitment letter or a new definitive agreement that would satisfy the preceding clause (i). Parent and Merger Sub shall promptly deliver to the Company copies of any amendment, modification, waiver or replacement of any Commitment Letter or any Definitive Agreement.
(c) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, Parent and Merger Sub will (i) use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with Cash Equity and the available portion of the Debt Financing, to pay the Merger Consideration and the other Merger Amounts) as promptly as reasonably practicable from the same or other sources; provided, that, in no event shall Parent be required to, and in no event shall its reasonable best efforts be deemed or construed to require it to, obtain alternative financing that includes terms and conditions, taken as a whole, that are less favorable in any material respect to Parent and its Subsidiaries than the terms and conditions, taken as a whole, set forth in the Debt Commitment Letter as of the date hereof or would require it to pay any fees or agree to pay any interest rate amounts or original issue discounts, in either case, in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (taking into account any flex provisions applicable thereto contained in the Fee Letters) or which include any conditions to the consummation of such alternative debt financing that would reasonably be expected to make the funding of such alternative debt financing less likely to occur, than the conditions set forth in the Debt Commitment Letter as of the date hereof (and, when obtained, provide the Company with a true and correct copy of any new financing commitment for such alternative debt financing) and (ii) promptly (and in any event within two (2) Business Days) notify the Company of such unavailability and the reason therefor. This Section 6.11 For the purposes of this Agreement, the term “Debt Commitment Letter” shall be deemed to apply include any commitment letter (or similar agreement) with respect to the any alternative or replacement financing arranged in compliance herewith (and any Debt Commitment Letter as so amendedremaining in effect at the time in question). Parent and Merger Sub shall provide the Company with prompt oral and written notice of any actual or threatened material breach, replacedearly termination, supplemented repudiation or otherwise modified and/or such material default by any party to any Commitment Letter or any Definitive Agreement, in each case, of which Parent or Merger Sub obtain Knowledge and the receipt of any written notice or other debt written communication from any Lender, Equity Investor or equity other financing source with respect to any material breach, material default, early termination or repudiation by any party to any Commitment Letter or any Definitive Agreement of any provision thereof. Parent and references Merger Sub shall keep the Company reasonably informed on a current basis of the status of its efforts to consummate the Financing. The foregoing notwithstanding, compliance by Parent and Merger Sub with this Section 5.12 shall not relieve Parent or Merger Sub of their obligation to consummate the transactions contemplated by this Agreement whether or not the Financing shall be deemed to refer instead to such alternative financingis available.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (At Home Group Inc.), Merger Agreement (At Home Group Inc.)
Financing. (a) Parent covenants shall use its reasonable best efforts to obtain the Financing on the terms and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, conditions described in the aggregateFinancing Commitments, sufficient for including using its reasonable best efforts (i) to negotiate definitive agreements with respect thereto on the payment of terms and conditions contained in the aggregate Cash Consideration Financing Commitments, (ii) to satisfy all conditions applicable to Parent, or Merger Sub in such definitive agreements, (iii) to comply with its obligations under the Financing Commitments, (iv) to obtain alternative financing commitments on terms no less favorable to Parent, Merger Sub or the Company than the current Financing Commitments if the current Financing Commitments become unavailable, and (v) to not agree to any other amounts required amendment or modification to be paid pursuant to Article IImade to, or any waiver of any material provision or remedy under the Financing Commitments, if such amendment, modification, waiver or remedy reduces the aggregate amount of cash the Financing or amends the conditions precedent to the Financing in a manner that would reasonably be expected to delay or prevent the consummation of the Merger or make the funding of the Financing less likely to occur. Parent shall give the Company prompt notice upon becoming aware of any material breach by any party of the Financing Commitments or any termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies of all documents related to the Financing Commitments and the Financing (other than any ancillary documents subject to confidentiality agreements, including fee letters and engagement letters). In the event that (i) all conditions in Sections 6.1 and 6.3 have been satisfied (or, with respect to certificates to be deposited pursuant to Section 1.7(bdelivered at the Closing, are capable of being satisfied upon the Closing) in respect at the time when the Closing would have occurred but for the failure of the Reserved Company Common Stock, and the aggregate amount of cash Financing Commitments to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awardsfunded, (ii) the funding of any required refinancings or repayments of any existing indebtedness of financing provided for by the Company Debt Commitments has been funded or Parent in connection with has received written notification that it will be funded at the Merger or Closing if the FinancingBuyer Group Commitments are funded at the Closing, and (iii) the payment of Company has irrevocably confirmed that if the Financing is funded such that the Closing pursuant to Section 1.2 could occur, the Company is willing to waive all fees and expenses and other payment obligations required conditions in Section 6.2, then Parent shall enforce its rights under the Financing Commitments to cause the Financing Commitments to be paid or satisfied funded at the Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letters, (A) Parent and Merger Sub shall promptly notify the Company and (B) Parent and Merger Sub shall use their reasonable best efforts to seek to arrange and obtain alternative financing from alternative sources on terms no less favorable to Parent, Merger Sub or the Company than the current Financing Commitments in an amount sufficient to consummate the merger which would not reasonably be expected to prevent, materially impede or delay the consummation of the transactions contemplated by this Agreement. Parent shall give the Company prompt notice of any material breach by any party to the Financing Commitments or of any condition not likely to be satisfied, in each case, of which Parent or Merger Sub becomes aware or any termination of the Financing Commitments. Parent and Merger Sub acknowledge and agree that the Surviving Entity in obtaining of the Financing, or any alternative Financing, is not a condition to Closing. In connection with its obligations under this Section 5.9, Parent shall not be restricted from amending, modifying or replacing the Debt Commitment Letters with new Financing Commitments, including through co-investment by or financing from one or more other additional parties (the “New Financing Commitments”) if the same does not reduce the aggregate amount of Parent’s financing or amend the conditions to drawdown in a manner adverse to the Company’s interests hereunder or otherwise delay or prohibit consummation of the Merger and the Financingor other transactions contemplated hereby.
(b) The Company shallshall provide, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory legal and accounting, toto provide, provide all cooperation reasonably requested by Parent with reasonable notice and that is customary in connection with the Financing (arrangement of the Financing, and the other transactions contemplated by this Agreement, provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries)Company, including using reasonable best efforts to (i) provide providing information as promptly as practicable relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to parties providing the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Financing, (ii) participate and cause senior management to participate participating in a reasonable number of meetings with Financing Sources and other presentations, road showsmeetings, drafting sessions, sessions and due diligence sessions (including accounting due diligence sessions) and sessions in connection with the rating agencies, in each case, relating to the completion of the Financing by the Financing SourcesFinancing, (iii) assist providing assistance in the preparation of (A) one or more offering documents or confidential information memoranda for any of the Debt Financing (including the execution and delivery of one or more customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, representation letters in connection therewith) and (B) materials for rating agency presentations, (iv) cooperate reasonably cooperating with the marketing and syndicating efforts for any component of the Financing Debt Financing, including providing (including consenting A) assistance in the preparation for, and participating in, meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies and (B) for the use of the Company’s logo in connection with such marketing and its Subsidiaries’ logos; syndicating efforts (provided that such logos are logo is used solely in a manner that is not intended to or nor reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its SubsidiariesSubsidiaries and its or their marks), (v) execute executing and deliver delivering (or use reasonable best efforts to obtain obtaining from its advisors), and cause causing its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters certificates (including consents of accountants for use of their reports in any materials relating to the Financingsolvency certificates), comfort letters, legal opinions or other documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the FinancingFinancing and otherwise facilitating the pledge of collateral and providing of guarantees contemplated by the Debt Commitment Letter; provided, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreementshowever, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect under any such certificate, document or instrument (other than the representation letters referred to above) shall be effective until the Financing (Effective Time and none of the Company or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) any of its Subsidiaries shall be required to pay any commitment or other similar fee, (iii) have any liability fee 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing prior to the Effective Time, and (vi) providing Parent with (A) customary pay-off letters with respect to the current credit facilities of the Company and its Subsidiaries and (B) recordable form lien releases, canceled notes and other documents reasonably requested by Parent prior to the Closing indicating that all Liens resulting from such credit facilities shall be satisfied, terminated and discharged on or any alternative financing that prior to the Closing Date. The Company shall request, and Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Companysuch request, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, Company or any of its Subsidiaries or their respective Representatives in connection with the foregoing cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) shall indemnify and hold harmless the Company, its Subsidiaries 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company such cooperation or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing. All material, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by and its Subsidiaries provided to Parent or its Merger Sub or their Representatives pursuant to this Section 6.11 5.9 shall be kept confidential by them in accordance with the Confidentiality AgreementAgreements except for disclosure to potential financing sources as required in connection with the Financing Commitments (and then subject to customary confidentiality protections).
Appears in 2 contracts
Samples: Merger Agreement (Goldman Sachs Group Inc/), Merger Agreement (Waste Industries Usa Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration Subsidiary acknowledges and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of agrees that neither the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 nor any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective required under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or 8.02 to incur any liability to any Person underunder or with respect to, the Financing (Financing, or alternative financing any cooperation provided pursuant to this Section 8.02, prior to the Closing that is not contingent on the Closing or for which Parent may raise in connection with is not obligated to reimburse or indemnify the transactions contemplated by Company or its Subsidiaries under this Agreement), . Parent and (iii) Merger Subsidiary shall indemnify and hold harmless the Company, Company and its Subsidiaries and their respective Representatives from and against any and all liabilitiesdamage, lossesloss and expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any action, damages, claims, costs, expenses, interest, awards, judgments and penalties suit or proceeding involving a third party claim) suffered or incurred by any of them prior directly or indirectly relating to, arising out of or resulting from any cooperation requested by Parent pursuant to this Section 8.02, and/or the Effective Time in connection with the arrangement provision of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided fullest extent permitted by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective RepresentativesApplicable Law.
(db) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result Each of obtaining alternative financingParent and Merger Subsidiary shall use its reasonable best efforts to take, or if Parent substitutes other debt cause to be taken, all actions necessary or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(bdesirable to (i) with respect subject to the Commitment Letter as so amendedother terms and provisions of this Agreement, replaced, supplemented or otherwise modified arrange and with respect to such other debt or equity financing to obtain the same extent that the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date proceeds of the Financing as set forth at Closing on the terms and conditions described in the Financing Commitment Letter or Letters to the extent the proceeds thereof are needed to pay the Aggregate Merger Consideration and to pay all other cash amounts required to be paid in connection with the consummation of the transactions contemplated by this Agreement, (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitment Letters (including the flex provisions thereof) (the “Financing Agreements”), which agreements shall be in effect as promptly as practicable after the date hereof, but in no event later than the Closing, and (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Subsidiary or their respective Affiliates under the Financing Agreements (including the consummation of the Equity Financing) that are within their control (other than, for the avoidance of doubt, any condition where the failure to be so satisfied results from the Company’s failure to deliver the Required Information or otherwise comply with its obligations hereunder). Notwithstanding the foregoing, Parent may substitute the Debt Financing contemplated by the Commitment Letter with an alternative debt financing of its choosing, whether with the same and/or alternative financing sources (any such agreements the substitute financing, a “Definitive Financing AgreementsPermitted Alternative Financing”), (B) adversely impact so long as such substitution does not reduce the ability aggregate amount of Parent Debt Financing, would not reasonably be expected to enforce its rights against other parties delay or prevent the Closing or make the timely funding of the Debt Financing materially less likely to occur to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of extent needed to consummate the Merger and would not impose new or additional conditions or expand upon (or amend or modify in any manner adverse to the other transactions contemplated by interests of the Company) the conditions precedent to the Debt Financing as set forth in Debt Commitment Letters, in each case in any material respect. For purposes of this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and all references to the Debt Financing shall be deemed to refer instead include any Alternative Financing (as defined below), and all references to such alternative Financing Sources shall include the persons providing or arranging, underwriting or placing any Alternative Financing.
(c) Parent and Merger Subsidiary shall use, and shall cause their Affiliates to use, its and their reasonable best efforts to cause the lenders that are party to the Debt Commitment Letters and any other Persons providing Financing to fund, at the Closing, the full amount of the Financing required to consummate the transactions contemplated by this Agreement and the Financing Commitment Letters on and subject to the terms and conditions set out in the Debt Commitment Letter, if all conditions to Closing contained in Article 9 are satisfied or waived (other than those conditions that (x) by their terms are to be satisfied at the Closing or (y) shall be satisfied or waived upon funding). Parent and Merger Subsidiary expressly acknowledge and agree that their obligations hereunder, including their obligations to consummate the transactions contemplated hereby, are not subject to, or conditioned on, receipt of financing.
(ed) All non-public Subject to the following sentence, Parent and Merger Subsidiary shall not, and shall cause their Affiliates not to, amend, alter or otherwise confidential information regarding waive, or agree to amend, alter or waive, any term or provision of the Financing Commitment Letters without the written consent of the Company obtained by Parent unless (in the case of the Debt Commitment Letters only) such amendment, alteration or its Representatives pursuant waiver would not reduce the aggregate amount of Debt Financing, or impose new or additional conditions or expand upon (or amend or modify in any manner adverse to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.interests of the Company) the conditions precedent to the
Appears in 2 contracts
Samples: Merger Agreement (Fogo De Chao, Inc.), Merger Agreement (Fogo De Chao, Inc.)
Financing. If any Grantor shall be subject to any Insolvency Proceeding and First Lien Agent consents to the use of cash collateral (aas such term is defined in Section 363(a) Parent covenants and of the Bankruptcy Code; herein, “Cash Collateral”), on which First Lien Agent has a Lien or to permit any Grantor to obtain financing provided by any one or more First Lien Creditors under Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (such financing, a “DIP Financing”), then Collateral Agent agrees with the Companythat it will, on behalf of itself the Second Lien Creditors, consent to such Cash Collateral use (and not control, protest, or object to such Cash Collateral use) and raise no objection to (or protest or contest) such DIP Financing and, to the extent the Liens securing the First Lien Obligations are discharged, subordinated to, or pari passu with such DIP Financing, Collateral Agent will subordinate its SubsidiariesLiens in the Collateral to the Liens securing such DIP Financing; provided that (a) the principal amount of any such DIP Financing plus the outstanding principal amount of other First Lien Obligations does not exceed the First Lien Cap, that it shall take (b) any such Cash Collateral use or DIP Financing does not compel the Grantor to seek confirmation of a specific plan of reorganization for which all action necessary to ensure that as or substantially all of the Closing Date, Parent and Merger Sub will have funds, material terms are set forth in the aggregateCash Collateral order or DIP Financing documentation, sufficient for (ic) any Cash Collateral order or DIP Financing documentation does not expressly require the payment liquidation of the aggregate Collateral prior to a default under the Cash Consideration Collateral order or DIP Financing documentation, and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant such DIP Financing is otherwise subject to the terms of Section 1.9 this Agreement. If the First Lien Creditors offer to provide DIP Financing that meets the requirements set forth in respect of clauses (a) through (d) above, the Company RSU AwardsCollateral Agent agrees that neither it nor any Second Lien Creditor shall, (ii) directly or indirectly, provide, offer to provide, or support any other DIP Financing secured by a Lien senior to or pari passu with the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent First Priority Liens. If, in connection with the Merger any Cash Collateral use or the DIP Financing, and (iii) any Liens on the payment Collateral held by First Lien Creditors are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “carve out,” or fees owed to the United States trustee, the Liens on the Collateral of all fees and expenses and other payment obligations required Second Lien Creditors shall also be subordinated to be paid such interest or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, claim and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating remain subordinated to the Company and its Subsidiaries to Liens on the Financing Sources that is reasonably available to the Company and is customary for completion Collateral of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings First Lien Creditors consistent with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Intercreditor Agreement (Interface Security Systems, L.L.C.), Intercreditor Agreement (Interface Security Systems Holdings Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to consummate and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing on the terms and subject only to the conditions (provided that such requested cooperation does not unreasonably interfere with including the ongoing operations of market “flex” provisions) set forth in the Company and its Subsidiaries)Financing Letters, including using reasonable best efforts to (i) provide information relating maintain in effect and comply with the Financing Letters, (ii) negotiate and enter into definitive agreements (which, with respect to the Company and its Subsidiaries bridge facility documentation, shall not be required until determined by Parent to be reasonably likely to be necessary in connection with the funding of the Debt Financing) with respect to the Debt Financing Sources that is reasonably available on the terms and subject only to the Company conditions (including the market “flex” provisions) set forth in the Debt Commitment Letter (or on other terms that, with respect to conditionality, are not less favorable to Parent or Merger Sub than the terms and is customary for completion of conditions (including market “flex” provisions) set forth in the Debt Commitment Letter), (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub in the Financing by Letters and the Financing Sources definitive agreements related thereto (including audited consolidated financial statements of by consummating the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period Equity Financing at or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date on the terms and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating subject to the completion of the Financing by the Financing Sources, (iii) assist conditions set forth in the preparation Equity Funding Letter) (or, if necessary or deemed advisable by Parent, seek the waiver of (A) any customary offering documents, bank information memoranda, prospectuses conditions applicable to Parent and similar documents for the Financing, and (B) materials for rating agency presentationsMerger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto), (iv) cooperate upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Offer and the Merger, consummate the Financing and cause the lenders and the other Persons committing to fund the Financing to fund the Financing at the Closing, (v) enforce its rights under the Financing Letters and the definitive agreements relating to the Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the marketing efforts for Financing Letters and the definitive agreements relating to the Financing. Parent, Merger Sub and the Guarantors shall not, without the prior written consent of the Company, agree to or permit any component termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Financing Letters or the definitive agreements relating to the Financing if such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of any portion of the Financing (including consenting by increasing the amount of fees to be paid or original issue discount as compared to the use fees and original issue discount contemplated by the Financing Letters on the date of this Agreement unless the Debt Financing or Equity Financing is increased by a corresponding amount) such that the aggregate amount of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely Financing would be below the amount required to pay 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 precedent to the Financing in a manner that is not intended would reasonably be expected to materially delay or reasonably likely to harm or disparage prevent the Company or its Subsidiaries or the reputation or goodwill funding of the Company or any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation satisfaction of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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 conditions to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (BC) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Commitment Financing Letters or the definitive agreements with respect to the Financing. Parent shall promptly deliver to the Company copies of any amendment, modification, supplement, consent or waiver to or under any Financing Letter or the Definitive definitive agreements relating to the Financing Agreementspromptly upon execution thereof. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 5.04 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 the Equity Financing from any source other than the counterparties to, or in any amount in excess of that contemplated by, the Equity Funding Letter, or (Cii) prevent, impede or delay the consummation pay any material fees in excess of the Merger and the other transactions those contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Equity Funding Letter or the Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing(including any market “flex” provisions contained therein).
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)
Financing. (ai) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary Subject to ensure that as of the Closing DateSection 6.9(a)(iii), Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each to be taken, as promptly as practicable after the date hereof but taking into effect the provisions of its Section 2.2, all actions, and their respective Representativesto do, or cause to be done, all things necessary to arrange, obtain and, on or prior to the Closing Date, consummate (x) the Debt Financing on the terms and conditions described in or contemplated by the Debt Commitment Letter (including legalcomplying with any request requiring the exercise of so-called “market flex” provisions in the fee letter) and (y) if applicable, tax, regulatory any Permanent Financing on the terms and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries)conditions contemplated thereby, including using reasonable best efforts to (iA) provide information relating (I) maintain in effect the Debt Commitment Letter (subject to the Company provisions of Section 6.9(a)(iii)) and its Subsidiaries to consummate the Debt Financing Sources that is reasonably available to the Company and is customary for completion of the and, if applicable, any Permanent Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period at or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding (II) comply with their obligations under the business, operations Debt Commitment Letter and financial projections the Definitive Financing Agreements and enforce their rights under the Debt Commitment Letter and the Definitive Financing Agreements and (B) subject to the provisions of the CompanySection 6.9(a)(iii), negotiate, enter into and deliver definitive agreements with respect to (iix) participate and cause senior management to participate the Debt Financing reflecting the terms contained in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions the Debt Commitment Letter (including accounting due diligence sessionsany “market flex” provisions applicable thereto) or on terms that, taken as a whole, are no less favorable in the aggregate to Parent than the terms contained in the Debt Commitment Letter (including any “market flex” provisions applicable thereto) or (y) if applicable, any Permanent Financing or the terms and sessions with the rating agenciesconditions contemplated thereby, in each case, relating which terms shall not in any respect expand on the conditions to the completion funding of the Financing by at the Financing Sources, (iii) assist in Closing or reduce the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component aggregate amount of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries available to be made available to Parent and/or Merger Sub funded at the Closing, provided that Closing below the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be amount required to take any action in fund the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter Required Payments (any such agreements definitive agreement, the “Definitive Financing Agreements”). Upon written request, Parent shall inform the Company of the status of Parent’s efforts to obtain the Debt Financing and, if applicable, any Permanent Financing in reasonable detail and shall promptly respond to any written request from the Company concerning such status. Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, after Parent has knowledge thereof, if at any time prior to the Closing Date (x) the Debt Commitment Letter or any of the commitments with respect to the Debt Financing thereunder or any Definitive Financing Agreement entered into in replacement of all or a portion of the Debt Financing contemplated by the Debt Commitment Letter or in connection with any Permanent Financing, as applicable, shall expire or be terminated (except, in the case of the Debt Commitment Letter only, in accordance with the terms of Section 6.9(a)(iii)), (y) for any reason, all or a portion of the Financing under the Debt Commitment Letter or under any Definitive Financing Agreement entered into in replacement of all or a portion of the Debt Financing contemplated by the Debt Commitment Letter or in connection with any Permanent Financing becomes unavailable (except in accordance with the terms of Section 6.9(a)(iii)) or (z) any Debt Financing Source or any other Person that is a party to the Debt Commitment Letter or any Definitive Financing Agreements breaches, defaults or repudiates the Debt Commitment Letter or such Definitive Financing Agreement and which breach, default or repudiation would reasonably be expected to adversely affect the conditionality, timing, availability or amount of the Financing necessary to fund the Required Payments. To the extent that Parent reasonably believes in good faith that it will not have funds available that are sufficient to enable it to make the Required Payments or if Parent otherwise becomes aware that any portion of the Financing has become unavailable under the Debt Commitment Letter or under the Definitive Financing Agreements, except in accordance with the terms of Section 6.9(a)(iii) (and Parent shall not agree or consent to such Debt Financing becoming unavailable except as permitted under Section 6.9(a)(iii)), Parent shall use its reasonable best efforts to, as promptly as practicable following the occurrence of such event, take, or cause to be taken, all actions necessary to arrange and obtain alternative financing from the same or alternative sources (A) with conditions to the funding of such alternative financing not more onerous, when taken as a whole, than those conditions contained in the Debt Commitment Letter as of the date of this Agreement) and (B) in an amount sufficient (when taken together with the proceeds of any other financing that has already been obtained in accordance with Section 6.9(a)(iii)) to pay the Required Payments (such alternative financing, the “Alternative Financing”); provided that, Parent shall have no obligation to pay any fees in excess of what it was obligated to pay under the original Debt Commitment Letter nor obtain Financing on terms (including with respect to interest rates) materially worse than the terms contained in the original Debt Commitment Letter as in effect on the date of this Agreement. Parent shall promptly deliver to the Company true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing necessary to fund the Required Payments.
(ii) In the event the Debt Financing (or any Permanent Financing or Equity Financing) or any portion thereof is funded in advance of the Closing Date, then Parent, Merger Sub or any other applicable subsidiary thereof shall keep and maintain the availability at all times prior to the Closing Date the proceeds of the Debt Financing (or any Permanent Financing or Equity Financing) solely for the purpose of funding the transactions contemplated by this Agreement, including the Required Payments; provided that if the terms of the Debt Financing (or any Permanent Financing or Equity Financing) require the proceeds of the Debt Financing (or any Permanent Financing or Equity Financing) to be held in escrow (or similar arrangement) pending the consummation of the transactions contemplated under this Agreement, then such proceeds may be held in escrow, so long as the conditions to the release of such funds are no more onerous to Parent than the conditions to borrowing of the Debt Financing contemplated by the Debt Commitment Letter.
(iii) Except as otherwise provided in this Section 6.9(a)(iii), neither Parent nor Merger Sub shall agree to or permit any amendment, supplement, modification, termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the Debt Commitment Letter or any Definitive Financing Agreement without the prior written consent of the Company if such amendment, supplement, modification, termination, reduction or waiver would or would reasonably be expected to (A) delay or prevent the Closing, (B) impose new or additional conditions or otherwise expand any of the conditions to the funding of the Debt Financing, (C) adversely impact the ability of Parent or Merger Sub to obtain the Financing or (D) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter or the any Definitive Financing AgreementsAgreement; provided that, or (Cnotwithstanding anything in this Section 6.9(a) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the contrary, Parent or Merger Sub may (w) amend, supplement or modify the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as so amendedof the date of this Agreement, replaced, supplemented or otherwise modified and/or such (x) enter into other debt financing arrangements and thereby reduce all or equity financing and references to a portion of the aggregate amount of the Debt Financing shall be deemed to refer instead to such alternative financing.
by the amount of, or the amount of any commitment (e) All non-public or otherwise confidential information regarding but not for the Company obtained by Parent or its Representatives avoidance of doubt pursuant to this Section 6.11 shall be kept confidential revolving credit or other working capital facilities, other than with respect to amounts actually drawn thereunder on the Closing Date and immediately funded in accordance with this Agreement to make the Confidentiality AgreementRequired Payments) for, any such debt financing so long as the conditions to funding under such debt financing arrangements satisfy clauses (A) through (D) above (as determined by Parent in good faith) (any such debt financing, a “Permanent Financing” and, together with the Debt Financing, the “Financing”), (y) reduce and/or replace the aggregate amount of the Debt Financing by the net proceeds raised by Parent and/or any of its Subsidiaries through any Equity Financing and (z) reduce and/or replace the aggregate amount of the Debt Financing by the amount of net proceeds from any sale or other disposition of any assets or property thereof (“Asset Sales”) received at or prior to such reduction or replacement. Upon any amendment, supplement, modification, termination, reduction or waiver of the Debt Commitment Letter in accordance with this Section 6.9(a)(iii) or any replacement of the Debt Commitment Letter otherwise in accordance with Section 6.9(a)(i), (i) references herein to “Debt Commitment Letter” shall include such document as amended, supplemented, modified, terminated, reduced or waived in compliance with this Section 6.9(a)(iii) or replaced otherwise in accordance with Section 6.9(a)(i) and (ii) references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as amended, supplemented, modified or waived in compliance with this Section 6.9(a).
Appears in 2 contracts
Samples: Merger Agreement (Colfax CORP), Merger Agreement (DJO Finance LLC)
Financing. (a) Parent covenants Subject to the terms and agrees with the Companyconditions of this Agreement, on behalf each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, shall use its reasonable best efforts to obtain the Financing on the terms and conditions described in the aggregateFinancing Documents, sufficient for including (i) maintaining in effect the payment Financing Documents until the Transactions are consummated in accordance with their respective terms, (ii) satisfying, or causing to be satisfied, on a timely basis all conditions to the closing of and funding under the Financing Documents applicable to Parent and/or Merger Sub that are within its control, including paying when due all commitment fees and other fees arising under the Financing Documents as and when they become due and payable thereunder, and (iii) consummating the Financing at or prior to the Effective Time in accordance with the terms of the Financing Documents; provided that Parent and/or Merger Sub may amend or modify the Financing Documents, and/or elect to replace all or any portion of the Debt Financing or increase the amount of debt financing to be obtained with alternative debt financing subject only to such conditions to funding as are substantially similar, or are not less favorable in aggregate, from the standpoint of the Company and its shareholders (other than the holders of Excluded Shares), than the terms and conditions as set forth in the Financing Documents as in effect on the date hereof (the “Alternative Financing”), in each case only so long as (A) the aggregate proceeds of the Financing (as amended or modified) and/or the Alternative Financing, together with the aggregate proceeds of the Equity Financing and an amount of Available Cash Consideration that equals or exceeds the Available Cash Amount, will be sufficient for Parent and the Surviving Company to pay (x) the Merger Consideration, and (y) any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger consummation of the Transactions upon the terms and conditions contemplated hereby and (B) such amendment or modification or the Alternative Financing would not prevent, materially delay or materially impede or impair the ability of Parent and Merger Sub to consummate the Transactions. Parent shall deliver to the Company true and complete copies of all Contracts or other arrangements pursuant to which any alternative sources have committed to provide the Alternative Financing (the “Alternative Financing Documents”) (except for customary engagement and fee letters) as promptly as practicable after execution thereof. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Documents and to the extent is not replaced by the Alternative Financing, and (iii) Parent shall promptly notify the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the FinancingCompany.
(b) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in Section 6.07(a) 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 pay any fees in excess of, or agree to “market flex” provisions less favorable to Parent, Merger Sub or the Surviving Company (or any of their Affiliates) than, those contemplated by the Debt Commitment Letters and/or, if applicable, the Alternative Financing Documents (in each case, whether to secure waiver of any conditions contained therein or otherwise).
(c) Subject to the terms and conditions of this Agreement, Parent and Merger Sub agree not to amend, modify or waive any provision of the Financing Documents, if such amendment, modification or waiver reduces (or would reduce) the aggregate amount of the Financing or imposes new or additional conditions or otherwise expands, amends or modifies the conditions to the Financing in a manner that would be expected to prevent or materially delay the ability of the Company, Parent or Merger Sub to consummate the Transactions or otherwise adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Documents. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any provision of, or termination by any party to, the Financing Documents or (ii) upon the receipt of any written notice from any person with respect to any threatened breach or threatened termination of the Financing Documents.
(d) The Company shall, shall cause its Subsidiaries toagrees to provide, and shall use its reasonable best efforts to cause each of its Subsidiaries and each of their respective RepresentativesRepresentatives to provide to Parent and Merger Sub, all reasonable cooperation as may be requested by Parent or its Representatives in connection with the Debt Financing and/or Alternative Financing and the Transactions, including legal(i) participation in meetings, taxpresentations, regulatory due diligence sessions, road shows, sessions with rating agencies and accountingother meetings, toincluding arranging for reasonable direct contact between senior management, provide all cooperation representatives and advisors of the Company or its Subsidiaries with Representatives of Parent and any sources or prospective sources of the Debt Financing and/or Alternative Financing, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations, other marketing documents and similar documents reasonably requested by Parent with reasonable notice or its Representatives in connection with the Debt Financing and/or Alternative Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the FinancingDebt Financing and/or Alternative Financing and delivery of one or more customary representation letters), (iii) as promptly as practicable, furnishing Parent and any sources or prospective sources of the Debt Financing and/or Alternative Financing with financial and other documents pertinent information regarding the Company and instruments ancillary to the Financing its Subsidiaries as may be reasonably requested by Parent as customary or any sources or prospective sources of the Debt Financing and/or Alternative Financing and is reasonably available to the Company (the “Required Information”) and using reasonable best efforts to cause the Company’s independent accountants to provide assistance and cooperation in connection with therewith to Parent and any sources or prospective sources of the Debt Financing and/or Alternative Financing, including (iv) reasonably cooperating with advisors, consultants and accountants of Parent or any amendments sources or prospective sources of the Debt Financing and/or Alternative Financing with respect to the conduct of any examination, appraisal or review of the financial condition or any of the Company’s assets or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any liabilities of the Company or any of its Subsidiaries shall be effective under Subsidiaries, including for the purpose of establishing collateral eligibility and values, (v) assisting in the preparation of one or more credit agreements, loan note purchase agreements, indentures and/or other instruments, as well as any pledge and security documents, and other definitive financing documents, collateral filings or other certificates or documents or currency or interest hedging arrangements or amendments to such existing arrangements as may be requested by Parent and otherwise facilitating the pledging of the Company and its Subsidiaries until the Effective Timecollateral, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (viiA) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable not prohibited by applicable Laws, facilitating the granting of guaranty, security or pledging of collateral and to (B) executing and delivering any guaranty, pledge and security documents, commitment letters, certificates and other definitive financing documents (the extent not unreasonably interfering with the business of “Definitive Debt Documents”), provided that any collateral pledged or security granted by the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, or any of its SubsidiariesSubsidiaries under, nor their respective Representatives, shall (i) be required to take and any action in the capacity of a director obligations of the Company or any of its Subsidiaries under, any Definitive Debt Documents to which it is a party shall be contingent upon the occurrence of the Effective Time, (vii) taking all actions reasonably necessary to (A) permit prospective sources of the Debt Financing and/or Alternative Financing to evaluate the Company’s or any of its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, provided that the information provided in connection therewith to such prospective sources shall be subject to the terms of the Confidentiality Agreements, and (B) establish bank and other accounts, blocked account agreements and lock box arrangements in connection with the foregoing, including over Available Cash, (viii) furnishing Parent, Merger Sub and their respective Representatives, as well as any prospective sources of the Debt Financing and/or Alternative Financing, promptly (and, provided that Parent shall have requested, in writing, such information from the Company at least fifteen (15) Business Days prior to the Closing, then in any event at least ten (10) Business Days prior to the Closing) with all documentation and other information required with respect to the Debt Financing and/or Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations, provided that the information provided to such prospective sources shall be subject to the terms of the Confidentiality Agreements, (ix) using reasonable best efforts to obtain any necessary rating agencies’ confirmation or alternative financing approval of the Debt Financing and/or Alternative Financing, and (x) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or Alternative Financing, including the execution and delivery of any other certificates, instruments or documents contemplated by the Debt Financing and/or Alternative Financing and reasonably requested by Parent and to permit the proceeds thereof to be made available at Closing to consummate the Transactions. Neither the Company nor any of its Subsidiaries shall be required to (x) pay any commitment or similar fee prior to the Effective Time or (y) commit to taking any action that Parent may raise is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time or that would otherwise subject it to actual or potential liability in connection with any Financing. Nothing contained in this Section 6.07(c) or otherwise shall require the Company or any of its Subsidiaries to be an issuer or other obligor with respect to any Financing prior to the Effective Time. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the transactions contemplated by Debt Financing and/or Alternative Financing.
(e) Parent shall, upon the termination of this Agreement) if such Representative believes such action would be inconsistent Agreement in accordance with their fiduciary dutiesits terms, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of Company or its Subsidiaries or their respective Representatives in connection with the any cooperation of the Company and its Subsidiaries contemplated by provided pursuant to this Section 6.11, (ii) acknowledges 6.07 and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties expenses or losses actually suffered or incurred by any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to provided in writing by the Company or its Subsidiaries and information provided by specifically for use in connection therewith), except in the event such liabilities, expenses or losses arose out of or result from the fraud, gross negligence, recklessness or willful misconduct of the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result . Each of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing to the same extent Merger Sub acknowledges and agrees that the Company would have been obligated to comply with respect and its Subsidiaries and their respective Representatives shall not, prior to the FinancingEffective Time, provided, incur any liability to any person under any financing that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, Parent and Merger Sub may raise in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance connection with the Confidentiality AgreementTransactions.
Appears in 2 contracts
Samples: Merger Agreement (Yao Jinbo), Merger Agreement (58.com Inc.)
Financing. (a) Parent covenants and agrees Merger Subsidiary 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 contemplated by the Commitment Letters on or prior to the Closing Date on the terms and conditions and in the amounts described in the Commitment Letters (including any “flex” provisions) or such other terms and conditions that are more favorable to Parent and Merger Subsidiary, including (i) maintaining in effect the Commitment Letters and any Definitive Debt Financing Agreements (as defined below) and complying with its obligations thereunder, (ii) satisfying on a timely basis, taking into consideration the Companytiming of the Closing and the completion of the Marketing Period, on behalf and in a manner that will not impede the ability of itself and its Subsidiaries, that it shall take all action necessary the parties hereto to ensure that as of consummate the Merger promptly upon the Closing Date, all conditions to the funding of the Financing set forth in the Commitment Letters and the Definitive Debt/Preferred Equity Financing Agreements that are within its control, (iii) using reasonable best efforts to negotiate and enter into definitive debt or preferred financing agreements on the terms and conditions contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable (including any “flex” provisions) or such other terms and conditions that are more favorable to Parent and Merger Sub will have fundsSubsidiary (the “Definitive Debt/Preferred Equity Financing Agreements”), (iv) if the conditions under the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable, are satisfied, consummating the applicable Debt/Preferred Equity Financing and causing the Debt/Preferred Equity Financing Sources to consummate their respective Financing at the Closing, (v) complying with its obligations under the Commitment Letters and Definitive Debt/Preferred Equity Financing Agreements in a timely and diligent manner, taking into consideration the timing of the Closing and the completion of the Marketing Period and (vi) keeping the Company informed on a regular and current basis and in reasonable detail of the status of its efforts to arrange the Financing contemplated by the Commitment Letters and any other financing (including, by, upon reasonable request of the Company, promptly providing to the Company drafts of material definitive agreements for the Financing (and any amendments thereto entered into on or prior to the Closing) and giving the Company prompt notice of (i) any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, sufficient for (i) a material and adverse impact on the payment of Financing contemplated by the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU AwardsCommitment Letters, (ii) any breach by any party to the funding Commitment Letters or Definitive Debt/Preferred Equity Financing Agreements of any required refinancings or repayments of any existing indebtedness of the Company or which Parent in connection with the Merger or the Financinghas become aware, and (iii) the payment expiration or termination (or attempted or purported termination, whether or not valid) of the Debt Commitment Letter or the Preferred Equity Commitment Letter, (iv) any written or electronic (including email) notice or communication by any Debt/Preferred Equity Financing Source with respect to any actual or threatened breach, default (or allegation thereof), repudiation by any party to any Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement or any refusal to provide, or stated intent that it will not provide, by any Debt/Preferred Equity Financing Source the full amount of the Debt/Preferred Equity Financing contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter for any reason, (v) Parent’s good faith belief, for any reason, that it may no longer be able to obtain all fees or any portion of any Financing contemplated by the Commitment Letters on the terms and expenses conditions described therein (after giving effect to any flex provisions), or (vi) receipt of any written notice or other written communication from any person with respect to any: (A) actual or potential breach, default, termination or repudiation by any party to the Debt Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement, (B) material dispute or disagreement between or among any parties to the Debt Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement (other than ordinary course negotiations) and other payment obligations required (C) the failure of any condition to the Debt/Preferred Equity Financing to be paid satisfied. Any breach of the Commitment Letters, the Financing agreements, any Alternative Financing commitment or satisfied any Definitive Debt/Preferred Equity Financing Agreements by Parent, Parent or Merger Sub and the Surviving Entity in connection with the Merger and the FinancingSubsidiary shall be deemed a breach by Parent of this Section 7.05.
(b) The Company shallPrior to the Closing, Parent shall not, and shall cause its Subsidiaries Affiliates not to, and shall use its reasonable best efforts agree to cause each or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its and their respective Representativesrights under, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Commitment Letters or Definitive Debt/Preferred Equity Financing (Agreements without Parent’s prior written consent; provided that such requested cooperation does not unreasonably interfere with Parent may, without the ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts to Company’s prior written consent: (i) provide information relating enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Commitment Letter, the Preferred Equity Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreements that would not, and would not reasonably be expected to, (A) reduce the amount of the Debt/Preferred Equity Financing contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter, to an amount that will be less than the Required Amount, (B) adversely affect the ability of Parent and Merger Subsidiary to enforce its rights against any other party to the Company and its Subsidiaries to Debt Commitment Letter or the Definitive Debt Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agenciesAgreements, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is so amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modifyeach case, in a manner adverse accordance with this Agreement, relative to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or as in effect on the Definitive Financing Agreementsdate hereof, or (C) prevent, materially delay or impede or delay the consummation of the Merger and Merger, the Debt/Preferred Equity Financing or the other transactions contemplated by this Agreement upon the satisfaction of the conditions set forth in the applicable Debt Commitment Letter or Preferred Equity Commitment Letter, or (D) impose any new or additional conditions, or otherwise expand any of the conditions, to the availability and funding of Debt/Preferred Equity Financing as contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable, and (ii) amend, replace, supplement or otherwise modify the Debt Commitment Letter or the Preferred Equity Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, purchasers or similar entities that have not executed the Debt Commitment Letter or Preferred Equity Commitment Letter as of the date of this Agreement. This Section 6.11 Upon any such amendment, replacement, supplement, modification or waiver, the terms “Debt Commitment Letter”, “Preferred Commitment Letter”, “Definitive Debt/Preferred Equity Financing Agreement”, as applicable, shall be deemed to apply to mean the Debt Commitment Letter, Preferred Equity Commitment Letter or Definitive Debt/Preferred Equity Financing Agreement, as applicable, as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references modified. Parent shall promptly deliver to the Financing shall be deemed to refer instead to Company copies of any such alternative financingamendment, replacement, supplement or other modification of the Debt Commitment Letter or Preferred Equity Commitment Letter and/or any such waiver of a provision of the Debt Commitment Letter or Preferred Equity Commitment Letter.
(ec) All non-public If all or otherwise confidential information regarding any portion of the Debt Financing or Preferred Equity Financing, as applicable, becomes unavailable, or the Debt Commitment Letter or any of the Definitive Debt Financing Agreements shall be withdrawn, repudiated, terminated or rescinded, regardless of the reason therefor, then Parent shall (i) use reasonable best efforts to arrange and obtain, as promptly as practicable, from the same and/or alternative debt or preferred equity financing sources, as applicable, alternative financing in an amount, together with the amount of Financing remaining available and cash and cash equivalent on hand at the Company and its Subsidiaries, sufficient to pay the Required Amount on the Closing Date, in each case, upon terms and conditions not materially less favorable, taken as a whole, than those set forth in the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable (including, for the avoidance of doubt, any related “market flex” provisions) (“Alternative Financing”) and (ii) promptly notify the Company of such unavailability and the reason therefor; provided that such reasonable best efforts shall not require Parent to pay more fees, OIDs or incur an increase in pricing than the pricing terms of the Debt Commitment Letter or Preferred Equity Commitment Letter, as applicable, as in effect on the date of this Agreement, taking into account any flex terms. In the event any Alternative Financing is obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.this Section 7.05(c), references in this Agreement to
Appears in 2 contracts
Samples: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Purchaser shall use its reasonable best efforts to cause each arrange and to consummate the Debt Financing (or, at the option of Purchaser, an equity offering in lieu of any portion of the Debt Financing) on the terms and conditions described in the Financing Commitments, which shall include using its reasonable best efforts to (i) maintain in effect the Financing Commitments and their respective Representativesto negotiate and execute definitive agreements with respect to the Debt Financing on terms that, when taken as a whole, are not materially less favorable, in the aggregate, to Purchaser than those contained in the Financing Commitments (including any “flex” provisions applicable thereto), which terms shall not in any material respect expand on the conditions to the Closing or to the funding at the Closing of the Debt Financing (the “Financing Agreements”), (ii) satisfy (or obtain a waiver of) on a timely basis all conditions in the Financing Commitments and the Financing Agreements that are to be satisfied by Purchaser and in its control and necessary to consummate the Debt Financing at or prior to the Closing, (iii) enforce its rights under the Financing Commitments and Financing Agreements, including legalthrough litigation pursued in good faith, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with (iv) consummate the Debt Financing (provided that such requested cooperation does not unreasonably interfere with at the ongoing operations of the Company and its Subsidiaries)Closing, including using reasonable best efforts to (iin the event that all conditions in the Financing Commitments are satisfied) provide information relating to the Company and its Subsidiaries to cause the Financing Sources that is reasonably available to fund the Company and is customary for completion of the Debt Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding at the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute comply with its obligations under the Financing Commitments. In the event any portion of the Debt Financing becomes unavailable on the terms and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters conditions contemplated in the Financing Commitments (including consents of accountants for use of their reports in any materials relating to “flex” provisions applicable thereto) and/or the Financing)Financing Agreements, or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments Purchaser becomes aware of any event or circumstance that would reasonably be expected to make any portion of the Company’s or its Subsidiaries’ existing credit agreementsDebt Financing unavailable, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries Purchaser shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit arrange to obtain promptly, on terms that are not materially less favorable to Purchaser than the Debt Financing contemplated by such Financing Commitments (including any cash and marketable securities “flex” provisions applicable thereto) and/or Financing Agreements, as applicable, any such portion from alternative sources in an amount, when added to the portion of the Company and its Subsidiaries Debt Financing that is available, equal to be made available to Parent and/or Merger Sub at the Closing, provided that amount of Debt Financing committed on the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters date hereof pursuant to the Financing Sources authorizing Commitments (“Alternative Financing”) and to obtain, and, when obtained, to provide Seller with a copy of, a new financing commitment and related fee letter (which fee letter may be redacted as specified in the distribution of information “Redacted Fee Letter” definition) that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”); provided, that, after giving effect to prospective lenders any such Alternative Financing Commitment Letter and containing a representation assuming the references therein 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, provided that the Company shall have received such documents in reasonable time to review Commitments and provide such representations, and (ix) cooperate reasonably with Debt Financing Sources’ due diligence, are references to the extent customary Alternative Financing Commitment Letter and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoingAlternative Financing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Timerespectively, the Company, its Subsidiaries representations and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any warranties of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as Purchaser set forth in Section 4.5 shall be true and correct in all material respects on and as of such date with the Commitment Letter same effect as though made on and as of such date. If applicable, other than in the immediately preceding sentence, any reference in this Agreement to “Debt Financing” shall include “Alternative Financing,” any reference to “Financing Commitments” or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements “Financing Commitment” shall include the “Definitive Alternative Financing Commitment Letter,” any references to “Financing Sources” and “Financing Source” shall include the source of any “Alternative Financing” and any reference to “Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive ” shall include any “Alternative Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.”
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (TE Connectivity Ltd.), Stock and Asset Purchase Agreement (CommScope Holding Company, Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, shall use (and cause their Affiliates to use) its reasonable best efforts to obtain the Financing on the terms and conditions described in the aggregateFinancing Commitments as promptly as practicable, sufficient for including using its reasonable best efforts (i) the payment of the aggregate Cash Consideration to negotiate and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in finalize definitive agreements with respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to thereto on the terms of Section 1.9 and conditions contained in respect of the Company RSU AwardsFinancing Commitments, (ii) the funding to satisfy on a timely basis all conditions applicable to Parent and Merger Sub set forth in such definitive agreements that are within either of any required refinancings their control or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, influence and (iii) to comply with its obligations under the payment Financing Commitments and consummate the Financing no later than the Closing (subject to the amendment and replacement rights described herein). Parent shall give the Company prompt notice upon becoming aware of all fees and expenses and other payment obligations required to be paid any material breach by any party of the Financing Commitments or satisfied by any termination of the Financing Commitments. Each of Parent, Merger Sub and the Surviving Entity Company shall refrain (and shall use their reasonable best efforts to cause their Affiliates to refrain) from knowingly taking, directly or indirectly, any action that would reasonably be expected to result in a failure or any or the conditions contained in the Financing Commitments or in any definitive agreement related to the Financing. Parent shall keep the Company informed on a reasonable basis and in reasonable detail of material developments relating to the Financing and the status of its efforts to arrange the Financing. Parent shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Financing Commitments or the definitive agreements related to the Financing if such amendment, modification, waiver or remedy reduces the aggregate amount of the Financing available, amends the conditions to the drawdown of the Financing, adds any condition to funding, or would reasonably be expected to adversely impact or delay in any material respect the ability of Parent and Merger Sub to consummate the transactions contemplated hereby or materially reduce the likelihood of the consummation of the transactions contemplated hereby or materially reduce the likelihood of any conditions to funding being satisfied, without first obtaining the Company’s prior written consent. Subject to the terms and conditions contained herein and satisfaction of the Tender Offer Conditions, in the case of the Offer, and the conditions set forth in Article VII, in the case of the Merger, in the event that all conditions to the Financing Commitments (other than, in connection with the Debt Financing, the availability or funding of any of the Equity Financing) have been satisfied. Parent shall draw down on the Financing required to consummate the Offer on the Acceptance Date and the Merger on the Closing Date. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, or Parent becomes aware of any event or circumstance that makes receipt of any portion of the Financing unlikely to occur in the manner and from the sources contemplated in the Financing Commitments, Parent shall promptly notify the Company and shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms no less beneficial and in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event but in no event later than the End Date. Parent shall deliver to the Company true and complete copies of all definitive agreements pursuant to which any such alternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing. Parent and Merger Sub acknowledge and agree that their respective obligations to consummate the Agreement are not conditioned or contingent upon receipt of the Financing.
(b) The Company shall, shall will and will cause its Subsidiaries to, to and shall will use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, Representatives to provide all cooperation reasonably requested by Parent with reasonable notice in connection with the arrangement of the Financing (provided that to the extent 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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate participation in a reasonable number of meetings in connection with the Financing Sources and other presentations, road shows, drafting sessions, (including due diligence sessions and meetings with ratings agencies) on reasonable advance notice, (including accounting due diligence sessionsii) furnishing Parent and sessions its financing sources with the rating agencies, in each case, relating financial information required to the completion of the Financing by the Financing Sourcesbe provided pursuant to Section 6.12(a) hereof when and as required thereby, (iii) assist assisting Parent and its financing sources in the preparation of (A) any customary offering documentsdocument (provided that any such document need not be issued by the Company or any of its Subsidiaries), bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate reasonably cooperating with the marketing efforts for any component of the Financing (including consenting to the use of the Company’s Parent 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)financing sources, (v) execute forming new direct or indirect Subsidiaries, (vi) cooperating in the preparation of, and deliver providing and executing (or use using reasonable best efforts to obtain from its advisors), documents as may reasonably be requested by Parent (including any underwriting or placement agreements, pledge and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan security documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing)other definitive financing documents, or other certificates, legal opinions or documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary (including a certificate of the Chief Financial Officer of the Company with respect to solvency matters)) and otherwise reasonably facilitating, to the extent reasonably requested by Parent, the pledging of collateral (including cooperation, to the extent reasonably requested by Parent, in connection with the Financingpay-off of existing indebtedness and the release of related Liens); provided, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreementshowever, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the representation letter referred to above) shall be effective until the Effective Time, and (vii) taking all actions to the extent reasonably requested by Parent necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, and (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent in connection with the consummation of the Financing prior to the Acceptance Time. The foregoing notwithstanding, (x) prior to the New Directors Time, no Pre-Acceptance Date Director shall be required to take any action with respect to the Financing (foregoing and neither the Company nor any of its Subsidiaries shall be obligated to take any action that requires action or alternative financing that Parent may raise in connection with approval by the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary dutiesPre-Acceptance Date Directors prior to the New Directors Time, (iiy) no obligation of the Company or any of its Subsidiaries or Representatives under any agreement, certificate, document or instrument relating to the Financing and executed or delivered pursuant to this Section 6.11(b) shall be effective until the Effective Time, and (z) none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee, (iii) have any liability fee 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with cost or expense (other than reasonable out-of-pocket costs, which shall be reimbursed by Parent pursuant to this Section 6.11(b)) prior to the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement)Acceptance Time. Parent (i) shall promptlyshall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of Company or its Subsidiaries or their respective Representatives in connection with the such cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties losses suffered or incurred by any of them prior to the Effective Time in connection with the arrangement of the Debt Financing and any information utilized in connection therewith (other than historical information relating to provided by the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their RepresentativesSubsidiaries), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public nonpublic or otherwise confidential information regarding the Company obtained by Parent Parent, Merger Sub, their Representatives or its Representatives their financing sources pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Safenet Inc), Merger Agreement (Stealth Acquisition Corp.)
Financing. (a) Parent covenants and agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions with the Company, on behalf of respect to itself and its Subsidiaries, that it shall take all action Buyer necessary to ensure that as consummate the transactions contemplated by the Commitment Letter. Parent will promptly notify Seller in writing of any termination of the Closing DateCommitment Letter or any proposed changes or modifications to the Commitment Letter that would materially adversely affect the ability of Parent to consummate the transactions contemplated by this Purchase Agreement. Parent will not amend, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment modify or supplement any of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect material terms or conditions of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant Commitment Letter relating to the terms amount or closing conditions thereof or in a manner reasonably likely to materially adversely affect the ability of Section 1.9 in respect Parent to consummate of the Company RSU Awardstransactions contemplated by this Purchase Agreement without the prior written consent of Seller, (ii) the funding of any required refinancings which consent shall not be unreasonably withheld or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financingdelayed.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for If at any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days time prior to the Closing Date and information regarding termination of this Purchase Agreement the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing financing contemplated by the Financing SourcesCommitment Letter is no longer available to Parent, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting Parent agrees 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), (v) execute and deliver (or use commercially reasonable best efforts to obtain from its advisors), and cause its Subsidiaries arrange alternative financing on terms which in Parent's judgment are at least as favorable to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with those contemplated by the Financing, including any amendments of any of Commitment Letter to enable Parent and Buyer to consummate the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of transactions contemplated by this Purchase Agreement and the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its SubsidiariesCollateral Documents.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of Seller shall use its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of commercially reasonable efforts and cooperate with Buyer and its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise agents and representatives in connection with the transactions financing contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary dutiesthe Commitment Letter or, (ii) be required to pay any commitment or other similar feeas applicable, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related alternative financing arrangements, including providing reasonable access to the Financing (or alternative financing Purchased Assets, Business Records, officers, directors, employees agents and other representatives of Seller, and using commercially reasonable efforts to cause its officers, directors, employees, agents, legal advisors, auditors and other representatives to assist and cooperate with the preparation of a standard confidential memorandum and participate in and cooperate with the marketing of any loan syndication and any meetings with rating agencies and prospective lenders; provided that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur shall reimburse Seller for any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives Seller in connection with the providing such cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representativesassistance.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Avaya Inc), Asset Purchase Agreement (Commscope Inc)
Financing. (a) Each of Parent covenants and agrees with Sub shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the CompanyFinancing Commitments; except that that Parent and Sub may (x) modify the terms and conditions of the Debt Financing Commitment so long as such modifications would not reasonably be expected to adversely impact the ability of Parent or Sub to timely consummate the transactions contemplated by this Agreement or the likelihood of consummation of the transactions contemplated by this Agreement and (y) replace or amend the Debt Financing Commitment to add lenders, on behalf of itself and its Subsidiariesarrangers, that it shall take all action necessary to ensure that bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as of the Closing Datedate hereof, or otherwise so long as such replacement or amendment would not reasonably be expected to adversely impact or delay in any material respect the ability of Parent or Sub to consummate the transactions contemplated hereby or the likelihood of the consummation of the transactions contemplated hereby. Subject to the terms and conditions of this Agreement (including Section 6.09(b) and Section 6.10), each of Parent and Merger Sub will have fundsshall use its reasonable best efforts (taking into account the anticipated timing of the Marketing Period) to take all actions, and to do all things reasonably necessary, proper or advisable to arrange and obtain the proceeds of the Financing (including the Bridge Loans (as defined in the aggregateDebt Financing Commitment), sufficient for if the funding of the Notes (as defined in the Debt Financing Commitment) as contemplated by the Debt Financing Commitment has not occurred substantially concurrently with or prior to the Merger Closing) on the terms and conditions (including the related flex provisions) described in the Financing Commitments and the Fee Letter, including using its reasonable best efforts to (i) maintain in effect the payment of Financing Commitments in accordance with the aggregate Cash Consideration terms and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant subject to the terms of Section 1.9 in conditions thereof, subject to the foregoing replacement and amendment rights with respect of to the Company RSU AwardsDebt Financing Commitment, (ii) satisfy on a timely basis (taking into account the funding anticipated timing of the Marketing Period) all conditions applicable to Parent and Sub obtaining the Financing at the Merger Closing set forth therein that are within their control, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions (including the flex provisions) contemplated by the Debt Financing Commitment and the Fee Letter (and provide copies thereof to the Company promptly upon their execution and otherwise keep the Company reasonably informed on a reasonably current basis of the status of their efforts to arrange the Debt Financing) and (iv) upon satisfaction of the conditions set forth in such definitive agreements, consummate the Financing substantially concurrent with the Merger Closing. Subject to the terms and conditions of this Agreement (including Section 6.09(b) and Section 6.10), in the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contained in the Debt Financing Commitment and the Fee Letter (other than due to the failure of a condition to the consummation of the Debt Financing resulting from a breach of any required refinancings representation, warranty, or repayments of any existing indebtedness covenant of the Company or set forth in this Agreement), Parent in connection with shall promptly notify the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each arrange to obtain alternative debt financing (including from alternative sources) no later than August 19, 2011 in an amount such that the aggregate funds that would be available to Parent and Sub at the Merger Closing under such alternative debt financing (when combined with the Equity Financing and cash on hand of its the Company) will be sufficient to pay all amounts contemplated by this Agreement to be paid by them and to perform their respective Representativesobligations under this Agreement, provided that neither Parent nor Sub shall be required to arrange for or obtain any such alternative debt financing (unless Parent and Sub otherwise determine in their sole discretion) on terms and conditions (including legal, tax, regulatory flex provisions) that are less favorable to the interests of Parent and accounting, to, provide all cooperation reasonably requested Sub than the terms contained in the Debt Financing Commitment and the Fee Letter. Parent shall give the Company prompt notice of any breach by Parent with reasonable notice in connection with any party to any of the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations Commitments of which Parent or Sub becomes aware, or any termination of any of any of the Financing Commitments. Parent shall promptly deliver to the Company true and its Subsidiaries)complete copies of all agreements pursuant to which any such financing source shall have committed to provide Parent and Sub with any portion of the Financing. For purposes of this Section 6.09, including using Section 6.10 and Section 5.03, references to “Financing” and “Debt Financing” shall include the financing contemplated by the Financing Commitments as permitted by this Section 6.09 to be amended, modified or replaced and references to “Financing Commitments”, “Debt Financing Commitment” and “Fee Letter” shall include such documents as permitted by this Section 6.09(a) to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.
(b) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.09 shall require, and in no event shall the reasonable best efforts of Parent or Sub be deemed or construed to require, either Parent or Sub to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion bring any enforcement action against any source of the Equity Financing by to enforce its respective rights under the Equity Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availableCommitment, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting to the use of the Company’s and its Subsidiaries’ logos; provided except 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash enforce, including by bringing suit for specific performance, the Equity Financing Commitment solely if the Company seeks and marketable securities is granted a decree of specific performance of the Company and its Subsidiaries obligation to be made available to Parent and/or consummate the Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters Closing after all conditions to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as granting thereof set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.Section
Appears in 2 contracts
Samples: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Emergency Medical Services CORP)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Purchaser shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to arrange and accounting, obtain the Financing as promptly as reasonably practicable on the terms and subject only to the conditions contained in the Financing Commitments. Purchaser shall not permit any amendment or modification to be made to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with or any waiver of any provision or remedy under, the Financing Commitments (provided that except for any such requested cooperation does amendments, modifications or waivers which, individually or in the aggregate, would not unreasonably interfere with be reasonably expected to prevent, delay or impair the ongoing operations availability of the Company and its Subsidiaries)Financing under the Financing Commitments or the consummation of the Transactions) without the prior written consent of the Sellers, including using which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting the generality of the foregoing, Purchaser shall use reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to Purchaser in the Financing Commitments that are within its control and otherwise comply with its covenants and other obligations thereunder, (iii) negotiate with the 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 (or a portion thereof) at or prior to the Applicable Closing, (v) enforce its rights under the Financing Commitments in the event of a breach or other failure to fund by a Lender that impedes or delays the Applicable Closing, and (vi) otherwise cause the Lenders to fund on the Applicable Closing Date the Financing (or a portion thereof) required to consummate the transactions to be consummated at the Applicable Closing (including taking enforcement action to cause the Lenders to provide the Financing); provided, that Purchaser shall not be 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 able to obtain 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 on the terms and conditions contemplated in the Financing Commitments, 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 Applicable Closing, the Sellers shall use their commercially reasonable efforts to 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 reasonable cooperation in connection with the arrangement of the Financing 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 Company and its Subsidiaries Sellers to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources Lenders (including audited consolidated financial statements information to be used in the preparation of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information an informational package regarding the business, operations and operations, financial projections and prospects of Purchaser and the Company), (ii) participate Business and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to Purchased Assets which is customary for such financing or reasonably necessary for the completion of the Financing by the Financing SourcesLenders, to the extent reasonably requested by Purchaser (including prior real estate title commitments, surveys, environmental reports and similar information), (iiiii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses memoranda and similar documents (including historical and pro forma financial statements and information) for the Financing, (iii) cause the Sellers and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries their Affiliates to execute and deliver (or and use commercially reasonable best efforts to obtain from its the Sellers’ and their Affiliates’ advisors) at, or conditional upon, the Applicable Closing customary certificates (including a certificate of the principal financial officer of each of the Sellers with respect to solvency matters), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, 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 Parent as customary Purchaser, (iv) assist in connection with the Financingpreparation of, including any amendments entering into and, upon reasonable prior notice to the extent related to the participation in meetings, presentations, drafting sessions or similar activities, syndication of any of the Company’s one or its Subsidiaries’ existing more credit agreements, note purchase agreements, indentures, currency or interest hedging agreements or other agreements; provided that no obligation of , including by refraining from entering into any competing financing transactions, (v) use commercially reasonable efforts to have the independent accountants of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants Sellers provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ixvi) cooperate reasonably with Financing Sourcesthe Lenders’ due diligence, to the extent customary and reasonable 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 extent not 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 Applicable Closing, or unreasonably interfering interfere with the business ongoing operations of Sellers and the Company and its Subsidiaries.
Sellers shall not (c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (iiA) be required to pay any commitment or other similar fee, (iiiB) have any liability or any obligation Liability under any credit agreement, note purchase agreement, indenture, hedging 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) Financing, or (ivC) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred expense unless such expense is advanced or simultaneously reimbursed by Purchaser (without set-off). Purchaser shall, without the Companyright of set-off, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) shall indemnify and hold harmless the Company, its Subsidiaries Sellers and their respective subsidiaries and Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties Losses suffered or incurred by them in connection with (1) any action taken by them at the request of them prior Purchaser pursuant to the Effective Time this Section 7.05(b) or in connection with the arrangement of the Financing and or (2) any information utilized in connection therewith (other than historical information relating relation to the Company or its Subsidiaries and information provided Sellers approved by the Company, its Subsidiaries or their RepresentativesSellers for use therein), except in the event that such losses, damages, claims, costs or expenses arise out . This indemnification shall survive termination of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amendedAll material, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent Sellers and their Affiliates provided to Purchaser or its Representatives Representative pursuant to this Section 6.11 7.05(b) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential investors as required in connection with the Financing subject to customary confidentially protections.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Residential Servicing Asset Purchase Agreement (Nationstar Mortgage Holdings Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself The Company and its Subsidiaries, that it Subsidiaries shall take all action necessary use commercially reasonable efforts to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent cooperate in connection with the Merger arrangement of Parent’s financing (whether debt, convertible debt or the Financingotherwise) including, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 without limitation (i) cooperating with Parent to provide the banks and other institutions or entities arranging or providing Parent’s financing all information relating (financial and other) with respect to the Company and its Subsidiaries and the transactions contemplated by this Agreement reasonably requested by Parent (except to the Financing Sources that is reasonably available to extent the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Companyprohibited from doing so under applicable confidentiality agreements), (ii) participate causing the Company’s senior officers and cause senior management other Company representatives to be available to Parent and the banks and other institutions or entities arranging or providing Parent’s financing to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (and to participate in presentations related to any transaction comprising Parent’s financing, including accounting due diligence sessions) and sessions with the “road show” presentations to rating agencies, in each case, relating to the completion of the Financing by the Financing Sourcespotential lenders and other investors, (iii) assist assisting in the preparation of (A) any customary one or more appropriate offering documentsdocuments and assisting Parent and the banks and other institutions arranging or providing Parent’s financing in preparing other appropriate marketing materials, bank information memoranda, prospectuses and similar documents for the Financingin each case to be used in connection with such financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting to the use of requesting the Company’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended independent auditors 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 prepare and deliver (or use reasonable best efforts to obtain from its advisors)at Parent’s expense) “comfort letters”, and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents dated the date of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary each offering document used in connection with any transaction comprising Parent’s financing (with appropriate bring down comfort letters delivered on the Financingclosing date for each financing), including any amendments in compliance with professional standards. Notwithstanding the foregoing, the officers of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in required to perform services pursuant to clauses (ii) or (iii) above to the extent the performance of such services would materially interfere with the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business operations of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented All out-of-pocket costs and expenses actually incurred by the Company, Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation performance of the Company and its Subsidiaries contemplated by obligations set forth in this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives 7.7 shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that be borne by Parent may raise in connection accordance with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective RepresentativesSection 11.6.
(db) Each of Parent and Merger Sub will use all commercially reasonable efforts to comply in all material respects with its obligations, covenants and agreements set forth in the Commitment Letter and to satisfy in all material respects the conditions set forth in the Commitment Letter. In the event that the Commitment Letter is amendedterminated, replacedeach of Parent and Merger Sub will use all commercially reasonable efforts to obtain comparable alternative third party financing. Each of Parent and Merger Sub shall use all commercially reasonable efforts to negotiate and enter into as soon as practicable after the date hereof, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions necessary in order to obtain the credit facilities contemplated by the Commitment Letter (any such agreements Letter. As used in this Agreement, the term “Definitive Financing Agreements”)Commitment Letter” shall mean the commitment letter dated November 6, (B) adversely impact 2007, by and between Parent, on the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreementsone hand, or (C) preventand CIT Healthcare LLC and CIT Capital Securities LLC, impede or delay the consummation of the Merger and on the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financinghand.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Providence Service Corp), Merger Agreement (Providence Service Corp)
Financing. (a) Parent covenants is a party to and agrees has accepted a fully executed commitment letter dated November 5, 2021 (together with all exhibits and schedules thereto, the Company“Commitment Letter”), on behalf pursuant to which the Financing Entities party thereto have agreed, subject to the terms and conditions thereof, to provide debt financing in the amounts set forth therein. The debt financing committed pursuant to the Commitment Letter is collectively referred to in this Agreement as the “Financing.” Parent has delivered to the Company a true, complete and correct copy of itself the fully executed Commitment Letter.
(b) Except as expressly set forth in the Commitment Letter, there are no conditions precedent to the obligations of the Financing Entities to provide the Financing or any contingencies that could permit the Financing Entities to reduce the total amount of the Financing, including any condition or other contingency relating to the amount of availability of the Financing pursuant to any “flex” provision. Assuming satisfaction or waiver (to the extent permitted by applicable Law) of the conditions in Section 7.1 and its SubsidiariesSection 7.2, as of the date hereof, Parent does not have any reason to believe that it shall take will be unable to satisfy on a timely basis all action necessary material terms and conditions to ensure be satisfied by it in the Commitment Letter on or prior to the Closing Date or that as of the Financing will not be available to Parent on the Closing Date, nor does Parent have knowledge that any of the Financing Entities will not perform its obligations thereunder. There are no side letters, understandings or other agreements, contracts or arrangements of any kind relating to the Commitment Letter that could affect the availability, conditionality, enforceability, termination or amount of the Financing.
(c) The Financing, when funded in accordance with the Commitment Letter and giving effect to any “flex” provision in or related to the Commitment Letter (including with respect to fees and original issue discount), shall provide Parent with cash proceeds on the Closing Date sufficient for the satisfaction of all of Parent’s and Merger Sub will have fundsSub’s obligations under this Agreement and under the Commitment Letter, in the aggregate, sufficient for (i) including the payment of the aggregate Cash Merger Consideration and any other amounts fees and expenses of or payable by Parent or Merger Sub pursuant to the terms of this Agreement and the Commitment Letter and to prepay, repay, refinance or satisfy and discharge all outstanding indebtedness of the Company and the Company Subsidiaries that is required pursuant to its terms to be paid pursuant to Article IIprepaid, repaid, refinanced or satisfied and discharged at the Closing (such amounts, collectively, the aggregate amount “Merger Amounts”).
(d) The Commitment Letter constitutes a legal, valid, binding and enforceable obligation of cash Parent and, to be deposited pursuant the knowledge of Parent, the other party thereto and is in full force and effect subject to Section 1.7(b) in respect Bankruptcy and Equity Exceptions. To the knowledge of Parent, as of the Reserved Company Common Stockdate hereof, no event has occurred which, with or without notice, lapse of time, or both, constitutes, or could reasonably be expected to constitute, a default, breach or a failure to satisfy a condition precedent on the part of Parent under the terms and conditions of the aggregate amount of cash Commitment Letter. Parent or an Affiliate thereof on its behalf has paid in full any and all commitment fees and other fees required to be paid pursuant to the terms of Section 1.9 in respect the Commitment Letter on or before the date of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financingthis Agreement, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity will pay in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that full any 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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended amounts due after the date of this Agreement as and when due. The Commitment Letter has not been materially modified, amended or altered as of the most recent audited financial statements and date hereof; the Commitment Letter will not be amended, modified or altered at least 40 days prior any time through the Closing, except as permitted by Section 6.20 (with any such amendment, modification or alteration promptly notified in writing to the Closing Date and information regarding the business, operations and financial projections of the Company); and, (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion as of the Financing by date hereof, the Financing Sourcescommitment under the Commitment Letter has not been terminated, (iii) assist in the preparation of (A) any customary offering documentsreduced, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 withdrawn 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports rescinded in any materials relating to the Financing)respect, or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligenceand, to the extent customary and reasonable and to the extent not unreasonably interfering with the business knowledge of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent no termination, reduction, withdrawal or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingrescission thereof is contemplated.
(e) All non-public In no event shall the receipt or otherwise confidential information regarding availability of any funds or financing (including, for the Company obtained avoidance of doubt, the Financing) by Parent or its Representatives pursuant any Affiliate or any other financing or other transactions be a condition to any of Parent’s obligations under this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Buyer shall use its reasonable best efforts to (x) take, or cause each to be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange the Debt Financing and the Sale Leaseback Financing as promptly as practicable following the date of its this Agreement and their respective Representatives, including legal, tax, regulatory (y) consummate the Debt Financing and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Sale Leaseback Financing (provided that such requested cooperation does not unreasonably interfere with on the ongoing operations of the Company and its Subsidiaries)Closing Date, including using its reasonable best efforts to to:
(i) provide information maintain in effect the Debt Commitment Letter and not permit or consent to any amendment or modification to be made to, not consent to any waiver of any provision or remedy under, and not replace, the Debt Commitment Letter, if such amendment, modification, waiver or replacement: (A) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) to an amount that would cause Buyer to not have sufficient funds to pay the Purchase Price and to pay all fees and expenses required to be paid by the Buyer relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion consummation of the Financing by transactions contemplated hereby and after giving effect to any increase in the Financing Sources (including audited consolidated financial statements amount of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period Equity Financing or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentationsimposes new or additional conditions or otherwise expands, (iv) cooperate with the marketing efforts for amends or modifies any component of the Financing (including consenting conditions to the use receipt of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely Debt Financing in a manner that is not intended would reasonably be expected to (1) materially delay 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at prevent the Closing, provided that (2) make the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business funding of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Debt Financing (or alternative financing that Parent may raise in connection with satisfaction of the transactions contemplated by this Agreementconditions to obtaining the Debt Financing) if such Representative believes such action would be inconsistent with their fiduciary duties, less likely to occur or (ii3) be required adversely impact the ability of Buyer to pay any commitment or enforce its rights against other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related parties to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Debt Commitment Letter or the definitive agreements with respect thereto when required pursuant to this Agreement (provided that Buyer may (I) amend, restate, supplement or otherwise modify the Debt Commitment Letter to (x) (i) add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date hereof, (ii) remove lenders, lead arrangers, bookrunners, syndication agents or similar entities who executed the Debt Commitment Letter as of the date hereof, or (iii) to reallocate commitments or change, assign or reassign titles, duties or roles to, or between or among, any entities party thereto, (y) amend the economic or other arrangements with respect to the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or (II) make any changes in connection with any “market flex” provisions contemplated by any fee letter related to the Debt Financing (a “Fee Letter”), in each case, if such addition of additional parties, such removal of parties, such reallocation, such assignment, such reassignment, such amendment or such changes (x) do not reduce the Debt Financing to be funded at the Closing, (y) do not result in additional conditions or contingencies to the funding of the Debt Financing or modify in a manner adverse, in any material respect, to Buyer the conditions to funding set forth in the Debt Commitment Letter, or (z) would not, individually or in the aggregate, be reasonably expected to delay or prevent the Closing;
(ii) cause the Equity Financing to be consummated upon satisfaction of the Financing Conditions contained in the Equity Commitment Letter;
(iii) satisfy on or prior to the Closing Date all Financing Conditions that are within Buyer’s control;
(iv) negotiate, execute and deliver Debt Financing Documents that reflect the terms and conditions consistent, in all material respects, with the terms contained in, or such other terms that are not materially less favorable to Buyer in the aggregate than, the Debt Commitment Letter;
(v) if necessary to achieve a Successful Syndication (as such term is defined in the Fee Letter), accept to the fullest extent all modifications to the Debt Financing provided in the “market flex” provisions contemplated by the Fee Letter;
(vi) in the event that the conditions set forth in Section 8.01 and Section 8.02 and the Financing Conditions have been satisfied or, immediately upon funding would be satisfied, cause the Financing Sources to fund the full amount of the Debt Financing at or prior to the Closing (or such lesser amount as may be required to consummate the transactions contemplated hereby);
(vii) enforce its rights under the Commitment Letters in the event of a Financing Failure Event to the extent, in the case of the Debt Commitment Letter, such Financing Failure Event results from a breach of the Debt Commitment Letter by the Financing Sources;
(viii) maintain in effect and not terminate the Sale Leaseback Agreement and not permit or consent to any amendment or modification to be made to the Sale Leaseback Agreement that is materially adverse to the Buyer;
(ix) satisfy on or prior to the Closing Date all SLB Conditions that are within Buyer’s control and required to be satisfied on or prior to the Closing Date;
(x) in the event that the conditions set forth in Section 8.01 and Section 8.02 and the SLB Conditions have been satisfied or, upon funding would be immediately satisfied, cause (including by enforcing its rights under the Sale Leaseback Agreement) the Sale Leaseback Purchaser to consummate the transactions under the Sale Leaseback Agreement simultaneously with the Closing hereunder; and
(xi) enforce its rights under the Sale Leaseback Agreement Letters in the event of a Financing Failure Event, to the extent such agreements Financing Failure Event results from a breach of the Sale Leaseback Agreement by the Sale Leaseback Purchaser.
(b) Buyer, upon the written request of Seller, shall keep Seller informed in reasonable detail of the status of its efforts to arrange the Financing and the Sale Leaseback Financing. Buyer shall give Seller prompt notice of any breach or repudiation or other Financing Failure Event, or receipt of a written notice of any anticipated or asserted breach or repudiation or other Financing Failure Event, by any party to the Commitment Letters or the Sale Leaseback Agreement of which Buyer or its Affiliate becomes aware, if such breach or repudiation would reasonably be expected to prevent or delay the Closing Date. Without limiting Buyer’s other obligations under this Section 5.21, if a Financing Failure Event occurs, Buyer shall (i) promptly notify Seller of such Financing Failure Event and the reasons therefor, (ii) in consultation with Seller, use its reasonable best efforts to obtain alternative financing from the same or alternative financing sources (the “Definitive Financing AgreementsAlternative Financing”), in an amount sufficient to pay the Purchase Price at the Closing and consummate the transactions contemplated by this Agreement and otherwise in accordance with Section 5.21(a), as promptly as practicable following the occurrence of such event, and (Biii) adversely impact the ability of Parent to enforce its rights against other parties when obtained, provide Seller with a copy of, a replacement financing commitment, if any, in accordance with Section 5.21(a)(i) that provides for such Alternative Financing, if applicable. Notwithstanding anything herein to the contrary, in no event shall Buyer (in its sole discretion) be required to (i) pay any fees in the aggregate in excess of those contemplated by the Debt Commitment Letter or (ii) agree to terms that are outside of, or less favorable than any terms set forth in the Debt Commitment Letter or the Definitive Financing Agreements, or Fee Letter (C) prevent, impede or delay the consummation of the Merger including any “market flex” provision therein). Seller agrees to provide all reasonable cooperation and the other transactions contemplated assistance reasonably requested by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential Buyer in accordance connection with the Confidentiality Agreementarrangement of any such Alternative Financing on a basis consistent Section 5.22 hereof (as though such Alternative Financing were the Debt Financing and any commitment letter thereunder were the Debt Commitment Letter).
Appears in 2 contracts
Samples: Asset and Stock Purchase Agreement (Darden Restaurants Inc), Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Financing. (a) Parent covenants and agrees with the CompanyParent, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent Merger Sub I and Merger Sub II shall, and shall use reasonable best efforts to cause their Representatives and Affiliates to, use their 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 and obtain the proceeds of the Debt Financing on the terms and conditions set forth in the Commitment Letter (including the market flex provisions set forth in any Fee Letter) as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Commitment Letter until Merger I, Merger II and the other Transactions are consummated, (ii) timely negotiate and enter into definitive agreements with respect to the Debt Financing (the “Debt Financing Documents”) on the terms and conditions set forth in the Commitment Letter (and the market flex provisions set forth in any Fee Letter) so that the Debt Financing Documents are in effect as promptly as practicable but in any event no later than the Closing, (iii) satisfy or cause to be waived on a timely basis all conditions applicable to Parent, Merger Sub I and Merger Sub II, their Representatives and their Affiliate set forth in the Commitment Letter or such definitive agreements and otherwise comply with their obligations thereunder; (iv) enforce Parent’s, Merger Sub I’s and Merger Sub II’s rights under the Commitment Letter and the Debt Financing Documents, (v) comply with Parent’s, Merger Sub I’s and Merger Sub II’s covenants and other obligations under the Commitment Letter and the Debt Financing Documents, (vii) fully pay (or cause to be fully paid) all commitment fees, ticking fees, other fees, costs, expenses and other amounts due and payable in connection with the Debt Financing; and (vi) upon the satisfaction or waiver of such conditions, consummate the Debt Financing.
(b) Parent shall not amend, modify or waive, or seek or agree to amend, modify or waive (in any case, whether by action or inaction), any term of the Commitment Letter or the Debt Financing Documents without the prior written consent of the Company. Parent shall not, and shall not permit any of its Affiliates to, take any action not otherwise required under this Agreement that is a breach of, or would result in termination of, the Commitment Letter. Parent shall keep the Company reasonably informed of the status of its efforts to arrange the Debt Financing and shall promptly provide to the Company copies of all executed amendments, modifications, consents or waivers to or under the Commitment Letter and all executed and substantially final draft Debt Financing Documents. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice: (i) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by any party to the Commitment Letter or any Debt Financing Documents of any provision of such Commitment Letter or Debt Financing Documents; (ii) any termination, cancellation or repudiation by any party to any of the Commitment Letter or Debt Financing Documents of which Parent becomes aware; (iii) of the receipt by Parent, Merger Sub I or Merger Sub II or any of their Affiliates or Representatives of any notice or other communication from any Person with respect to any (A) breach, default, termination or repudiation by any party to the Commitment Letter or any Debt Financing Documents of any provision thereof or (B) dispute or disagreement between or among any parties to the Commitment Letter or any Debt Financing Documents with respect to the Debt Financing; and (iv) if for any reason Parent, Merger Sub I or Merger Sub II or any of their Affiliates believes in good faith that (A) there is a dispute or disagreement between or among any parties to the Commitment Letter or any Debt Financing Documents with respect to the Debt Financing or (B) there is a reasonable likelihood that the Debt Financing will have fundsnot be available for any reason on the terms, in the aggregate, sufficient for manner or from the sources contemplated by the Commitment Letter or any Debt Financing Documents.
(ic) If the payment of Debt Financing in an aggregate amount (together with cash and marketable securities on hand) at least equal to the aggregate Per Share Cash Consideration to be deposited with the Exchange Agent and any all other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding Agreement becomes unavailable on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter for any reason (any such agreements the event, an “Definitive Original Financing AgreementsFailure”), Parent shall promptly notify the Company in writing of the Original Financing Failure and Parent shall use all reasonable efforts to arrange and obtain, as promptly as reasonably practicable, alternative financing from alternative sources (Bincluding debt, equity or other financing) adversely impact the ability in an amount, when added with available cash and marketable securities of Parent and its Subsidiaries, sufficient to enforce its rights against other parties to consummate the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this AgreementAgreement and to pay all related fees and expenses (the “Alternate Financing”), and to obtain one or more new financing commitment letters with respect to such Alternate Financing (collectively, the “New Commitment Letter”) and related fee letters, which shall replace the existing Commitment Letter and any existing Fee Letter; provided that any such Alternate Financing shall not (i) obligate the Company prior to the Closing as a surety, guarantor or indemnitor or to extend credit to any person or (ii) impose any new or additional condition or otherwise expand any condition to draw and other terms that would reasonably be expected to affect the availability thereof at the Closing. This Section 6.11 Parent shall promptly provide a true and complete copy of such New Commitment Letter and any related fee letter (as redacted to remove any fees, interest rates, “market flex” rights, and other economic terms, in each case that would not adversely affect the conditionality, enforceability, termination or aggregate principal amount of such alternative financing) in connection therewith to the Company. In the event a New Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall mean the financing contemplated by the Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Commitment Letter” shall be deemed to apply mean the New Commitment Letter and any fee letter provided in connection therewith, (iii) any reference in this Agreement to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing “Fee Letter” shall be deemed to refer instead include any fee or other letter relating to such alternative financing.
the New Commitment Letter to the extent then in effect, and (eiv) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant any references to this Section 6.11 “Debt Financing Documents” shall be kept confidential deemed to mean the definitive agreement with respect to the Debt Financing on the terms and conditions set forth in accordance with the Confidentiality AgreementNew Commitment Letter.
Appears in 2 contracts
Samples: Merger Agreement (Teledyne Technologies Inc), Merger Agreement (Flir Systems Inc)
Financing. (a) Ultimate Parent covenants shall take, or cause to be taken, all actions and agrees with do, or cause to be done, all things necessary or advisable to arrange the Company, Debt Financing on behalf of itself the terms and its Subsidiaries, that it shall take all action necessary conditions described in the Debt Commitment Letter and to ensure that as of consummate the Debt Financing on the Closing Date. Such actions shall include, but not be limited to, the following: (i) maintaining in effect the Debt Commitment Letter; (ii) participation by senior management of Ultimate Parent in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies; (iii) satisfying on a timely basis all Financing Conditions applicable to Ultimate Parent in the Debt Commitment Letter that are within its control; (iv) negotiating, executing and delivering Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (to the extent required to consummate the transactions contemplated hereunder) (including any “market flex” provisions related thereto) or on such other terms acceptable to Ultimate Parent and its financings sources; and (v) in the event that the conditions set forth in Section 6.1 and Section 6.2 and the Financing Conditions have been satisfied or, upon funding, would be satisfied, cause the financing providers to fund the full amount of the Debt Financing to the extent the proceeds thereof are needed to fund transactions contemplated hereunder. Ultimate Parent shall give the Company reasonably prompt notice of any breach, repudiation or threatened (in writing) breach or repudiation by any party to the Debt Commitment Letter of which Ultimate Parent or its Affiliates becomes aware. Without limiting Ultimate Parent’s other obligations under this Section 5.15, if a Financing Failure Event occurs, Ultimate Parent shall (A) promptly notify the Company of such Financing Failure Event and the reasons therefor, (B) use commercially reasonable efforts to obtain alternative financing from alternative financing sources (on terms not materially less favorable to Ultimate Parent (as determined in the reasonable judgment of Ultimate Parent, taking into account any “market flex” provisions related to the Debt Commitment Letter) than those contained in the Debt Commitment Letter), in an amount sufficient, together with other financial resources of Ultimate Parent, Parent and Merger Sub will have fundsSub, in the aggregate, sufficient for (i) the payment of to pay the aggregate Cash Consideration Merger Consideration, Option Payments and any other amounts required to be paid RSU Payments pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, this Agreement and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with consummate the transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event, and (C) if and when obtained, provide the Company with a true and complete copy of a new financing commitment that provides for such Representative believes alternative financing. Ultimate Parent shall have the right from time to time to amend, modify, supplement, restate, assign, substitute or replace any of the Debt Commitment Letter or any Debt Financing Document from the same and/or an alternative Financing Source; provided, that any such action would amendment, modification, supplement, restatement, assignment, substitution or replacement shall not, without the prior written consent of the Company (such consent not to be inconsistent with their fiduciary dutiesunreasonably withheld, conditioned or delayed) (ii1) be required to pay add any commitment conditions precedent or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document contingencies related to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation funding of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Debt Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of (beyond the Financing as set forth Conditions) that would result in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any to such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent funding being materially less likely to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, be satisfied or (C2) prevent, be reasonably expected to impede or delay in any material respect the consummation of the Merger and the other transactions contemplated by this Agreement. This For purposes of this Section 6.11 5.15 and Section 5.16 below, references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, modified, supplemented, restated, assigned, substituted or replaced by this Section 5.15 (including in the event of a Financing Failure Event) and references to “Debt Financing Documents” or “Debt Commitment Letter” shall include such documents as permitted to be amended, modified, supplemented, restated, assigned, substituted or replaced by this Section 5.15 (including in the event of a Financing Failure Event). Ultimate Parent shall be permitted to reduce the amount of Debt Financing under the Debt Commitment Letter in its reasonable discretion, provided, that Ultimate Parent shall not reduce the Debt Financing to an amount committed below the amount that is required, together with other financial resources of Ultimate Parent, Parent and Merger Sub including cash, cash equivalents and marketable securities of Ultimate Parent, Parent, Merger Sub, the Company and the Company’s Subsidiaries on the Closing Date, to consummate the Merger on the terms contemplated by this Agreement, and provided, further, that such reduction shall not (I) add any conditions precedent or other contingencies related to the funding of the Debt Financing on the Closing Date (beyond the Financing Conditions) that would result in the conditions to such funding being materially less likely to be satisfied or (II) be reasonably expected to impede or delay in any material respect the consummation of the Merger and the other transactions contemplated by this Agreement. For the avoidance of doubt, the syndication of the Debt Financing to the extent permitted by the Debt Commitment Letter and subject to the conditions contained therein shall not be deemed to apply to the Commitment Letter as so amended, replaced, supplemented violate Ultimate Parent’s or otherwise modified and/or such other debt or equity financing Parent’s obligations under this Agreement. Ultimate Parent shall consult with and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding keep the Company obtained by Parent or its Representatives pursuant informed in reasonable detail of the status of Ultimate Parent’s efforts to this Section 6.11 shall be kept confidential in accordance with arrange the Confidentiality AgreementDebt Financing.
Appears in 2 contracts
Samples: Merger Agreement (Thoratec Corp), Merger Agreement (St Jude Medical Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to arrange and obtain the proceeds of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with on the ongoing operations of terms and conditions described in the Company and its Subsidiaries)Commitment Letter, including using reasonable best efforts to (i) provide information relating to maintain in full force and effect the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Commitment Letter, (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit negotiate definitive financing agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing on terms and conditions that are not materially less favorable to Parent may raise in connection with and Merger Sub than the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any and enter into, on or prior to the Closing Date, definitive financing agreements with respect to the Financing, and promptly upon execution thereof provide executed copies of such definitive agreements to the “Definitive Financing Agreements”)Company, (Biii) adversely impact satisfy on a timely basis (or obtain the ability waiver of) (taking into account the expected timing of the Closing) all conditions and covenants, and otherwise comply with all terms and conditions, applicable to Parent and Merger Sub in the Commitment Letter and such definitive agreements within their control, (iv) consummate the Financing at or prior to Closing, and (v) enforce its their rights against other parties under the Commitment Letter. In the event that all conditions to the Commitment Letter have been satisfied or, upon funding will be satisfied, Parent and Merger Sub shall use their reasonable best efforts to cause the Financing Sources and the other Persons providing or committing to provide the Definitive Financing Agreements, to comply with their obligations under the Commitment Letter and the definitive financing agreements entered into in connection with the Financing and to fund on or (C) prevent, impede or delay before the consummation of Closing Date the Financing required to consummate the Merger and the other transactions contemplated by this AgreementAgreement (including taking enforcement action, to cause the Financing Sources and the other Persons providing or committing to provide the Financing to fund such Financing). This Section 6.11 shall be deemed Parent and Merger Sub will keep the Company informed on a reasonably current basis of the status of their efforts to apply arrange the Financing and to satisfy the conditions thereof, including (A) promptly notifying the Company of (1) any actual, threatened or alleged material breach or default by any party to the Commitment Letter or any definitive financing agreement entered into in connection with the Financing, if such breach or default would reasonably be expected to affect the timely availability of, or the amount of, the Financing and (2) the receipt by any of Parent or Merger Sub or any of their respective Representatives of any notice or other communication from any Financing Source or any other Person with respect to any material dispute or disagreement between or among any parties to any Commitment Letter or any definitive financing agreement entered into in connection with the Financing, if such dispute or disagreement would reasonably be expected to affect the timely availability of, or amount of, the Financing, and (B) upon the Company’s reasonable request, advising and updating the Company, in a reasonable level of detail, with respect to the status (and any material developments concerning such status) and proposed funding date thereunder. Without the prior written consent of the Company, Parent and Merger Sub will not agree, permit, or otherwise consent, to any amendment of, supplement or modification to, or waiver under, the Commitment Letter or the definitive agreements relating to the Financing if such amendment, supplement, modification or waiver (x) would reduce the aggregate cash amount of proceeds of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing), (y) would change or impose new or additional conditions or otherwise expands or amends any of the conditions to the receipt of the Financing from those set forth in the Commitment Letter on the date of this Agreement or (z) would otherwise reasonably be expected to (1) prevent or materially delay the Closing Date or (2) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur, (collectively, the “Restricted Commitment Letter Amendments”), other than a waiver of any closing conditions by lender(s) or their agents. Parent and Merger Sub may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as so of the date of this Agreement, if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Commitment Letter Amendment. In addition, Parent and Merger Sub shall not permit or consent to any waiver of any remedy under the Commitment Letter or to any early termination of the Commitment Letter. For purposes of this Agreement, references to the “Commitment Letter” shall include such documents as permitted or required by this Section 5.11 to be amended, replacedmodified, supplemented or otherwise modified and/or waived, in each case from and after the date of such other debt amendment, supplement, modification or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingwaiver.
(eb) All non-public If, notwithstanding the use of reasonable best efforts by Parent and Merger Sub to satisfy their obligations under this Section 5.11, any of the Financing or the Commitment Letter (or any definitive financing agreement relating thereto) expire or are terminated or otherwise confidential information regarding become unavailable prior to the Closing, in whole or in part, for any reason, Parent and Merger Sub will (i) promptly notify the Company obtained of such expiration, termination or unavailability and (ii) use its reasonable best efforts promptly to arrange for alternative financing (which will be in an amount sufficient to pay, when added to the other resources of Parent and other financing arrangements, the Required Amount) from other sources on terms and conditions not materially less favorable, taken as a whole, to Parent and Merger Sub than the terms and conditions of the Financing contained in the Commitment Letter to replace the Financing contemplated by Parent such expired or its Representatives pursuant terminated or unavailable commitments or agreements (“Alternative Financing”). Copies of each commitment letter and other agreement relating to this Section 6.11 the Alternative Financing (the “Alternative Commitment Letters”) shall be kept confidential promptly provided to the Company (except for customary engagement letters and fee letters, redacted copies of which fee letters will be delivered). If applicable, references in accordance with the Confidentiality Agreement.this Agreement to
Appears in 2 contracts
Samples: Merger Agreement (Rockwood Holdings, Inc.), Merger Agreement (Albemarle Corp)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, (i) Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its their respective reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things reasonably necessary, regulatory proper or advisable to arrange and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing on the terms and conditions described in the Financing Commitments (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiariesincluding any applicable “market flex” provisions), including using and use reasonable best efforts to (iA) provide information relating to the Company and its Subsidiaries to maintain in effect the Financing Sources that Commitments until the Merger is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availableconsummated, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting to the use of the Company’s negotiate 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit enter into definitive agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing on the terms and conditions (including any applicable “market flex” provisions) contemplated by the Financing Commitments (or alternative financing on other terms that are acceptable to Parent may raise in connection with and could not reasonably be expected to (1) reduce the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary dutiesaggregate amount of net cash proceeds available from the Financing, (ii2) introduce new or additional conditions or otherwise be required reasonably likely to pay any commitment prevent, impede, delay or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to impair the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement availability of the Financing and any information utilized in connection therewith (other than historical information relating or the ability of Parent or Merger Sub to consummate the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence Merger as of the Company, any of its Subsidiaries Closing or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B3) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter Financing Commitments, (C) satisfy on or prior to the Closing all conditions precedent applicable to Parent and Merger Sub in the Financing Commitments, (D) consummate the Financing at or prior to the Closing, (E) enforce the rights of Parent and Merger Sub under the Financing Commitments and (F) comply in all material respects with its covenants and other obligations under the Financing Commitments. Notwithstanding anything contained herein to the contrary, neither Parent nor Merger Sub will permit any amendment, supplement or other modification of, or waiver of any provision or remedy under, the Financing Commitments to the extent such amendment, supplement, other modification or waiver could reasonably be expected to (1) reduce the aggregate amount of net cash proceeds available from the Financing, (2) introduce new or additional conditions or otherwise be reasonably likely to prevent, impede, delay or impair the availability of the Financing or the Definitive Financing Agreementsability of Parent or Merger Sub to consummate the Merger as of the Closing, or (C3) prevent, impede adversely impact the ability of Parent or delay the consummation of the Merger and Sub to enforce its rights against the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references parties to the Financing shall be deemed Commitments. Parent and Merger Sub will deliver to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent copies of any such amendment, modification, replacement or waiver promptly upon its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreementexecution thereof.
Appears in 2 contracts
Samples: Merger Agreement (American Greetings Corp), Merger Agreement (American Greetings Corp)
Financing. (a) Parent covenants Until the Discharge of Revolving Obligations, if any Grantor shall be subject to any Insolvency Proceeding and agrees the Revolving Collateral Agent consents to the use of cash collateral (as such term is defined in Section 363(a) of the Bankruptcy Code or any comparable provision of any other applicable Bankruptcy Law; herein, “Cash Collateral”) under Section 363(b) of the Bankruptcy Code (or any comparable provision of any other Bankruptcy Law) constituting Revolving Priority Collateral or consents to permit any Grantor to obtain financing provided by any one or more Revolving Claimholders or any other Person under Section 364 of the Bankruptcy Code (or any comparable provision of any other Bankruptcy Law) secured at least in part by a Lien on such Revolving Priority Collateral that is (i) senior to or pari passu with the CompanyRevolving Liens on the Revolving Priority Collateral and (ii) junior to the Term Liens on the Term Priority Collateral (such financing, a “DIP Financing”), and if the Grantors desire to obtain authorization from the applicable Bankruptcy Court to use such Cash Collateral or to obtain such DIP Financing, then the Term Collateral Agent, for itself and on behalf of the other Term Claimholders, agrees that the Term Claimholders will consent (and hereby are deemed to have consented to), and will not object to or oppose, or support any other Person objecting to or opposing, such use of such Cash Collateral or such DIP Financing (except to the extent provided in Section 6.4) and, to the extent the Revolving Liens are subordinated to or pari passu with any new Liens securing such DIP Financing, the Term Collateral Agent, for itself and on behalf of the other Term Claimholders, will subordinate (and hereby subordinates) the Term Liens on the Revolving Priority Collateral (x) to the Liens thereon securing such DIP Financing, (y) to all adequate protection Liens on the Revolving Priority Collateral granted to the Revolving Collateral Agent and (z) to any “carve out” from, or security or charge on, the Revolving Priority Collateral agreed to by the Revolving Collateral Agent for United States Trustee fees and professional fees to the extent consistent with the other provisions of this Agreement; provided that (A) the Term Collateral Agent and the other Term Claimholders shall retain the Term Liens on the Collateral and, as to the Term Priority Collateral only, the Term Liens shall have the same priority as existed prior to the commencement of the Insolvency Proceeding and any Lien on the Term Priority Collateral securing such DIP Financing shall be junior and subordinate to the Term Liens on the Term Priority Collateral, (B) all Liens on Revolving Priority Collateral securing any such DIP Financing shall be senior to or pari passu with the Revolving Liens on the Revolving Priority Collateral, (C) the interest rate, fees and advance rate of any such DIP Financing are commercially reasonable under the circumstances, (D) any such Cash Collateral use or DIP Financing does not compel any Grantor to seek confirmation of a specific Plan of Reorganization for which all or substantially all of the material terms are set forth in the Cash Collateral order or DIP Financing documentation, (E) any Cash Collateral order or DIP Financing documentation does not expressly require the liquidation of the Collateral prior to a default under the Cash Collateral order or DIP Financing documentation, (F) to the extent that the Revolving Collateral Agent or any other Revolving Claimholders are granted adequate protection in the form of a Lien on Collateral arising after the commencement of the Insolvency Proceeding, the Term Claimholders are also granted a Lien on such additional Collateral with the relative priority set forth in Section 2.1 (and the Revolving Collateral Agent and the other Revolving Claimholders will be deemed to have consented to, and will raise no objection to or support any other Person objecting to or contesting, any motion by any Term Claimholder to receive, or the granting of, such a Lien), and (G) the terms of such DIP Financing or Cash Collateral order do not require any Term Claimholders to extend additional credit pursuant to such DIP Financing or Cash Collateral order. If the Revolving Claimholders or any other Person offer to provide DIP Financing that meets the requirements set forth in clauses (A) through (G) above, and if the Grantors desire to obtain authorization from the applicable Bankruptcy Court to obtain such DIP Financing, the Term Collateral Agent agrees, on behalf of itself and its Subsidiariesthe other Term Claimholders, that it no Term Claimholder shall, directly or indirectly, provide, offer to provide, or support any financing competing with the DIP Financing, including a Term DIP Financing. The foregoing provisions of this Section 6.1(a) shall take all action necessary to ensure that as of not restrict the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and Term Collateral Agent or any other amounts required Term Claimholders from objecting to be paid pursuant or opposing any provision in any Cash Collateral order or DIP Financing documentation relating to Article II, the aggregate amount any provision or content of cash to be deposited pursuant to Section 1.7(b) in respect a Plan of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the FinancingReorganization.
(b) The Company shallUntil the Discharge of Term Obligations, if any Grantor shall cause its Subsidiaries to, be subject to any Insolvency Proceeding and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting Term Collateral Agent consents to the use of Cash Collateral under Section 363(b) of the Company’s and its Subsidiaries’ logos; Bankruptcy Code (or any comparable provision of any other Bankruptcy Law) constituting Term Priority Collateral or consents to permit any Grantor to obtain financing provided that by any one or more Term Claimholders or any other Person under Section 364 of the Bankruptcy Code (or any comparable provision of any other Bankruptcy Law) secured at least in part by a Lien on such logos are used solely in a manner Term Priority Collateral that is not intended (i) senior to or reasonably likely pari passu with the Term Liens on the Term Priority Collateral and (ii) junior to harm or disparage the Company or its Subsidiaries or Revolving Liens on the reputation or goodwill of the Company or any of its Subsidiaries)Revolving Priority Collateral (such financing, (v) execute and deliver (or use reasonable best efforts to obtain from its advisorsa “Term DIP Financing”), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts if the Grantors desire to obtain authorization from its advisorsthe applicable Bankruptcy Court to use such Cash Collateral or to obtain such Term DIP Financing, then the Revolving Collateral Agent, for itself and on behalf of the other Revolving Claimholders, agrees that the Revolving Claimholders will consent (and hereby are deemed to have consented to), credit agreements and will not object to or oppose, or support any other loan documentsPerson objecting to or opposing, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for such use of their reports in any materials relating such Cash Collateral or such Term DIP Financing (except to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary extent provided in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (viSection 6.4) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligenceand, to the extent customary the Term Liens are subordinated to or pari passu with any new Liens securing such Term DIP Financing, the Revolving Collateral Agent, for itself and reasonable on behalf of the other Revolving Claimholders, will subordinate (and hereby subordinates) the Revolving Liens on the Term Priority Collateral (x) to the Liens thereon securing such Term DIP Financing, (y) to all adequate protection Liens on the Term Priority Collateral granted to the Term Collateral Agent and (z) to any “carve out” from, or security or charge on, the Term Priority Collateral agreed to by the Term Collateral Agent for United States Trustee fees and professional fees to the extent not unreasonably interfering consistent with the business other provisions of this Agreement; provided that (A) the Revolving Collateral Agent and the other Revolving Claimholders shall retain the Revolving Liens on the Collateral and, as to the Revolving Priority Collateral only, the Revolving Liens shall have the same priority as existed prior to the commencement of the Company Insolvency Proceeding and its Subsidiariesany Lien on the Revolving Priority Collateral securing such Term DIP Financing shall be junior and subordinate to the Revolving Liens on the Revolving Priority Collateral, (B) all Liens on Term Priority Collateral securing any such Term DIP Financing shall be senior to or pari passu with the Term Liens on the Term Priority Collateral, (C) the interest rate, fees and advance rate of any such Term DIP Financing are commercially reasonable under the circumstances, (D) any such Cash Collateral use or Term DIP Financing does not compel any Grantor to seek confirmation of a specific Plan of Reorganization for which all or substantially all of the material terms are set forth in the Cash Collateral order or Term DIP Financing documentation, (E) any Cash Collateral order or Term DIP Financing documentation does not expressly require the liquidation of the Collateral prior to a default under the Cash Collateral order or Term DIP Financing documentation, (F) to the extent that the Term Collateral Agent or any other Term Claimholders are granted adequate protection in the form of a Lien on Collateral arising after the commencement of the Insolvency Proceeding, the Revolving Claimholders are also granted a Lien on such additional Collateral with the relative priority set forth in Section 2.1 (and the Term Collateral Agent and the other Term Claimholders will be deemed to have consented to, and will raise no objection to or support any other Person objecting to or contesting, any motion by any Revolving Claimholder to receive, or the granting of, such a Lien), and (G) the terms of such Term DIP Financing or Cash Collateral order do not require any Revolving Claimholders to extend additional credit pursuant to such Term DIP Financing or Cash Collateral order. If the Term Claimholders or any other Person offer to provide Term DIP Financing that meets the requirements set forth in clauses (A) through (G) above and DIP Financing is not provided as set forth in Section 6.1(a), and if the Grantors desire to obtain authorization from the applicable Bankruptcy Court to obtain such Term DIP Financing, the Revolving Collateral Agent agrees, on behalf of itself and the other Revolving Claimholders, that no Revolving Claimholder shall, directly or indirectly, provide, offer to provide, or support any financing competing with the Term DIP Financing, including a DIP Financing. The foregoing provisions of this Section 6.1(b) shall not restrict the Revolving Collateral Agent or any other Revolving Claimholder from objecting to or opposing any provision in any Cash Collateral order or Term DIP Financing documentation relating to any provision or content of a Plan of Reorganization.
(c) Notwithstanding the foregoingThe Term Collateral Agent, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director for itself and on behalf of the Company or any of its Subsidiaries other Term Claimholders, agrees that, with respect to any Cash Collateral use or DIP Financing that meets the Financing (or alternative financing that Parent may raise requirements of Section 6.1(a), no Term Claimholder will request adequate protection in connection with its rights as a holder of Liens on the transactions contemplated Revolving Priority Collateral, except as expressly agreed by this Agreement) if such Representative believes such action would be inconsistent the Revolving Collateral Agent or as permitted by Section 6.4(b)(ii). The Revolving Collateral Agent, for itself and on behalf of the other Revolving Claimholders, agrees that, with their fiduciary dutiesrespect to any Cash Collateral use or Term DIP Financing that meets the requirements of Section 6.1(b), (ii) be required to pay any commitment or other similar fee, (iii) 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 no Revolving Claimholder will request adequate protection in connection with its rights as a holder of Liens on the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptlyTerm Priority Collateral, upon request except as expressly agreed by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred Term Collateral Agent or as permitted by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement6.4(b)(ii), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect All Revolving Liens granted to the Commitment Letter as so amendedRevolving Collateral Agent or any other Revolving Claimholder, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing all Term Liens granted to the same extent that the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented Term Collateral Agent or otherwise modified and/or such any other debt or equity financing shall not (A) add new (or modifyTerm Claimholders, in a manner adverse to Parentany Insolvency Proceeding, any existing) conditions precedent whether as adequate protection or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated otherwise, are intended by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger be and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply be subject to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such Lien priorities set forth in Section 2.1 and the other debt or equity financing terms and references to the Financing shall be deemed to refer instead to such alternative financingconditions of this Agreement.
(e) All non-public or otherwise confidential information regarding The Term Collateral Agent, for itself and the Company obtained by Parent other Term Claimholders, and the Revolving Collateral Agent, for itself and the other Revolving Claimholders, waives any claim it or its Representatives pursuant to this Section 6.11 shall be kept confidential related Claimholders may hereafter have against any Claimholder of the other Class arising out of any cash collateral or financing arrangement, and any related grant of a security interest in the Senior Priority Collateral of such Claimholder of the other Class, made in accordance with the Confidentiality Agreementthis Section 6.1 in any Insolvency Proceeding.
Appears in 2 contracts
Samples: Revolving Credit and Guaranty Agreement (REV Group, Inc.), Term Loan and Guaranty Agreement (REV Group, Inc.)
Financing. (a) Parent covenants If the Debtor shall be subject to any Insolvency Proceeding and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting if First Lien Creditor consents to the use of the Company’s and its Subsidiaries’ logos; provided that cash collateral (as such logos are used solely term is defined 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 Section 363(a) of the Company Bankruptcy Code; herein, “Cash Collateral”), on which First Lien Creditor has a Lien or consents to the Debtor obtaining financing provided under Section 364 of the Bankruptcy Code or any similar provision of its Subsidiaries)any other Bankruptcy Law (such financing, (v) execute and deliver (or use reasonable best efforts to obtain from its advisorsa “DIP Financing”), and cause its Subsidiaries if such Cash Collateral use or DIP Financing, as applicable, meets the applicable DIP Financing Conditions, then each Second Lien Creditor unconditionally agrees that it will consent to execute and deliver such Cash Collateral use or raise no objection to such DIP Financing, as applicable (or use reasonable best efforts other than objections to obtain from its advisorsthe failure to grant adequate protection that such Second Lien Creditor is permitted to seek under Section 6.5 in connection therewith), credit agreements and, if DIP Financing is involved, each Second Lien Creditor will subordinate its Liens in the Collateral (and in any other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters assets of the Debtor that may serve as collateral (including consents avoidance actions, or the proceeds thereof) for such DIP Financing) to the Liens securing such DIP Financing. If such Cash Collateral use or DIP Financing, as applicable, meets some, but not all, of accountants for the applicable DIP Financing Conditions, then each Second Lien Creditor unconditionally agrees that it will only withhold its consent to such Cash Collateral use or will only raise an objection to such DIP Financing based upon the DIP Financing Condition(s) which are not met and will not withhold its consent or object on any other basis (other than objections to the failure to grant adequate protection that such Second Lien Creditor is permitted to seek under Section 6.5 in connection therewith) and, if DIP Financing is involved and any permitted objection of their reports Second Lien Creditor is withdrawn, overruled, or otherwise eliminated, each Second Lien Creditor will subordinate its Liens in the Collateral (and in any materials relating other assets of the Debtor that may serve as collateral (including avoidance actions, or the proceeds thereof) for such DIP Financing) to the Liens securing such DIP Financing). If the proposed DIP Financing meets the applicable DIP Financing Conditions, each Second Lien Creditor agrees that it shall not, and nor shall any of the Second Lien Claimholders, directly or indirectly, provide, offer to provide, or other documents and instruments ancillary support any DIP Financing secured by a Lien senior to or pari passu with the Liens securing the First Lien Priority Debt; provided, however, that the First Lien Creditor may withhold its consent or object to any DIP Financing as may be reasonably requested proposed by Parent as customary a Second Lien Creditor or any Second Lien Claimholder which is proposed if First Lien Creditor has not proposed or consented to DIP Financing which satisfies the DIP Financing Conditions. If, in connection with the any Cash Collateral use or DIP Financing, including any amendments Liens on the Collateral held by the First Lien Claimholders to secure the First Lien Debt are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “carve-out,” or fees owed to the United States Trustee, and so long as the amount of any such surcharge, claim, carve out or fee is reasonable under the circumstances, then the Liens on the Collateral of the Company’s Second Lien Claimholders securing the Second Lien Debt shall also be subordinated to such interest or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any claim and shall remain subordinated to the Liens on the Collateral of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably First Lien Claimholders consistent with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Intercreditor Agreement (Boxlight Corp), Intercreditor Agreement (Boxlight Corp)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Acquisition Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and 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 and obtain the proceeds of the Equity Financing and the Debt Financing on the terms and conditions described in the Equity Commitment Letter or the Debt Commitment Letter, as applicable (as each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice may be amended in connection accordance with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiariesterms below), including using reasonable best efforts to (i) provide information relating enter into definitive agreements with respect thereto on the terms and conditions contained therein and (ii) to satisfy on a timely basis (taking into account the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion expected timing of the Financing by Closing) all conditions, and otherwise comply with all terms, applicable to Parent and Acquisition Sub in such definitive agreements within their control. Parent and Acquisition Sub may not agree to or permit any amendment, supplement or other modification to be made to, or any waiver of any material provision or remedy under, the Financing Sources (including audited consolidated financial statements of Equity Commitment Letter without the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections consent of the Company), (ii) participate . Parent and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 Acquisition Sub may not intended agree to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or permit any of its Subsidiaries)amendment, (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), supplement or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries modification to be made available to Parent and/or Merger Sub at the Closingto, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any waiver of its Subsidiaries with respect to the Financing (any material provision or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person remedy under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Debt Commitment Letter or the definitive agreements with respect thereto on terms and relating to the Debt Financing without the consent of the Company if such amendments, supplement, other modification or waivers would or could reasonably be expected to (w) reduce the aggregate amount of the Debt Financing below the amount required to repay or refinance the debt contemplated in this Agreement or the Debt Commitment Letter, (x) impose new or additional conditions to the receipt of the Debt Financing or amend or otherwise modify the existing conditions to the receipt of the Debt Financing so as to adversely impact the ability of Parent or Acquisition Sub to timely consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby, (y) prevent or materially delay the consummation of the transactions contemplated by the Commitment Letter this Agreement or (any such agreements the “Definitive Financing Agreements”), (Bz) adversely impact the ability of Parent or Acquisition Sub to enforce its rights against the other parties to the Debt Commitment Letter (provided, that, for the avoidance of doubt, Parent and Acquisition Sub may replace or amend the Definitive Financing AgreementsDebt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities).
(Cb) prevent, impede or delay the consummation If any portion of the Merger Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Parent and Acquisition Sub shall use their respective reasonable best efforts to arrange and obtain alternative debt financing from alternative sources in an amount sufficient when combined with cash on hand and other financing arrangements to consummate the transactions contemplated by this AgreementAgreement as promptly as practicable following the occurrence of such event; provided, however, that Parent and Acquisition Sub shall not be required to seek or accept any such alternate debt financing if the terms or conditions thereof are less favorable to Parent (in the reasonable judgment of Parent) than the Debt Financing to be replaced, including with respect to economic terms and conditions. This Section 6.11 Parent and Acquisition Sub shall be deemed to apply keep the Company informed on a reasonably current basis in reasonable detail of the all material activity concerning the status of the Debt Financing or any alternative debt financing and concurrently provide final copies of the material definitive documents for the Debt Financing provided to the lenders. Parent and Acquisition Sub shall each give the Company prompt notice of (i) any material breach by any party of the Equity Commitment Letter, the Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references any definitive document related to the Equity Financing or Debt Financing of which Parent or Acquisition Sub becomes aware or (ii) the receipt by it of any written notice with respect to any material breach, default, termination or repudiation by any party to the applicable the Equity Commitment Letter, the Debt Commitment Letter or any definitive document related to the Equity Financing or Debt Financing, as applicable, of any material provisions of the Equity Commitment Letter, Debt Commitment Letter or any definitive document related to the Equity Financing. As soon as reasonably practicable, Parent shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential provide any information regarding reasonably requested by the Company obtained by Parent or its Representatives pursuant relating to any circumstance referred to in the immediately preceding sentence. Notwithstanding anything in this Section 6.11 shall be kept confidential 5.18 or in accordance with any other provision of this Agreement, Parent and Acquisition Sub acknowledge and agree that the Confidentiality Agreementobtaining of the Debt Financing, or any alternative debt financing, is not a condition to Closing.
Appears in 2 contracts
Samples: Amalgamation Agreement, Agreement and Plan of Amalgamation (SeaCube Container Leasing Ltd.)
Financing. (a) Parent covenants and agrees with the CompanyPurchaser has, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Datedate of this Agreement, Parent committed financing (the “Financing”) pursuant to an executed commitment letter (the “Commitment Letter”) to which an agreed version of an interim loan agreement is attached, and Merger Sub will have fundsan executed fee letter, in each case dated on or prior to the aggregatedate of this Agreement, sufficient for among one or more substantially wholly owned Affiliates controlled by Purchaser (the “Purchaser Financing Parties”) and the Financing Sources, copies of which have been provided to Seller (with the fee letter redacted in a customary manner solely with respect to fee amounts and economic terms (and none of the redacted provisions would allow the Financing Sources to reduce the amount of funding to be provided under the Financing Documents or the conditions on which such funding is available)) (the “Financing Documents”), the proceeds of which shall be on-lent or otherwise transferred by the Purchaser Financing Parties to Purchaser or each substantially wholly owned Affiliate controlled by Purchaser that will purchase Purchased Assets at or prior to Closing in accordance with the terms of this Agreement (the “Purchasing Entities”), in each case pursuant to Section 4.18(b)(B) and the terms of one or more intercompany financing agreements. All conditions precedent to the funding (the “Financing Conditions Precedent”) are set forth in the Financing Documents, and at Closing Purchaser or the applicable Purchasing Entities will (subject to satisfaction of the Financing Conditions Precedent) have the necessary cash resources to pay the Closing Purchase Price and meet all of Purchaser’s financial obligations under this Agreement and the Ancillary Agreements. As of the date of this Agreement, (i) the payment of the aggregate Cash Consideration and any other amounts required there are no conditions precedent related to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments the full amount of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iiiii) there are no, and there are not contemplated to be any, agreements, side letters or arrangements relating to (a) the payment conditions precedent to the funding of the full amount of the Financing or (b) any reduction of the amount of the Financing, in each case other than as expressly set forth in the Financing Documents. None of the Financing Documents have been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, and the respective commitments contained therein have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement. As of the date of this Agreement, each of the Financing Documents is in full force and effect and constitutes the legal, valid and binding obligations of the Purchaser Financing Parties (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity), and to the Knowledge of Purchaser, each of the other parties thereto, and enforceable against the Purchaser Financing Parties, and, to the Knowledge of Purchaser, each of the other parties thereto, in accordance with its terms. As of the date of this Agreement, no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default) or prevent any of the Financing Conditions Precedent from being satisfied, in each case on the part of the Purchaser Financing Parties, or, to the Knowledge of Purchaser, any other parties thereto, under the Financing Documents. As of the date of this Agreement, Purchaser does not have any reason to believe that (x) any of the Financing Conditions Precedent will not be satisfied, or (y) the Financing will not be available to any of Purchaser, the Purchaser Financing Parties and the Purchasing Entities at Closing. Purchaser has fully paid, or caused to be fully paid, all commitment fees and expenses and other payment obligations fees to the extent required to be paid on or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts prior to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary this Agreement in connection with the Financing. Except as permitted by Section 4.18, including Purchaser shall not agree, nor shall it allow any amendments of its Affiliates or Representatives to agree, to amend the terms of, or waive any term of or right under, any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company Financing Documents and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking take any action not prohibited by Section 5.1, (viii) provide customary authorization letters or omit to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representationstake any action, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary shall cause its Affiliates and reasonable and to the extent Representatives not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in or omit to take any action, which would impair or restrict its ability to enforce its rights or the capacity of a director rights of the Company or Purchaser Financing Parties thereunder in any of its Subsidiaries with respect manner. Notwithstanding anything in this Agreement to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary dutiescontrary, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) Purchaser acknowledges and agrees that, except for obligations of that the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement obtaining of the Financing and any information utilized in connection therewith (other than historical information relating is not a condition to Closing or the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence consummation of the CompanyTransaction, any and that, irrespective and independently of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion availability of the Financing, Purchaser shall be obligated to pay the Company shall comply with Closing Purchase Price and meet all its covenants in Section 6.11(b) with respect financial obligations under this Agreement and the Ancillary Agreements, subject only to the Commitment Letter as so amended, replaced, supplemented satisfaction 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date waiver of the Financing as conditions set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingArticle VII.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Equity and Asset Purchase Agreement (Ardagh Finance Holdings S.A.), Equity and Asset Purchase Agreement (Ball Corp)
Financing. (a) Parent covenants and agrees with shall use its reasonable best efforts to (taking into account the Companyexpected timing for Closing) obtain, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of no later than the Closing Date, Parent the proceeds of the Financing on the terms and Merger Sub will have funds, conditions described in the aggregateCommitment Letters (subject to replacement thereof in accordance with Section 5.17(c)), sufficient for including (i) maintaining in effect the payment of the aggregate Cash Consideration Commitment Letters in accordance with and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant subject to the terms of Section 1.9 in respect of and conditions set forth therein (it being understood that the Company RSU AwardsCommitment Letters may be replaced or amended as provided below), (ii) negotiating definitive agreements with respect to the funding of any required refinancings or repayments of any existing indebtedness of Debt Financing (the Company or Parent in connection “Definitive Agreements”) substantially consistent with the Merger or terms and conditions contained in the FinancingDebt Commitment Letter (including, and as necessary, any “market flex” provisions contained in any related fee letter), (iii) satisfying on a timely basis (or obtaining a waiver of) all conditions in the payment of all fees Debt Commitment Letter and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection (iv) complying with the Merger covenants applicable to it in the Commitment Letters and in the Definitive Agreements for the Financing.
. In the event that all conditions contained in the Commitment Letters (bother than, with respect to the Debt Financing, the availability of the Cash Equity) The Company shallhave been satisfied, shall cause its Subsidiaries to, and Parent shall use its reasonable best efforts to cause each the Debt Financing Sources and Equity Investor to fund the Financing at Closing (including by promptly taking enforcement action in the event of a breach by the Debt Financing Sources or Equity Investor of their obligations under the Commitment Letters or Definitive Agreements); provided, however, in no event shall “reasonable best efforts” of Parent under this Section 5.17 be deemed or construed to require Parent to instigate or pursue litigation against any of the Debt Financing Sources. Parent shall not, without the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Commitment Letters if such amendment, modification, waiver or remedy (i) imposes any new (or expands or adversely modifies any existing) conditions to the consummation of the Financing in a manner that could reasonably be expected to prevent or delay the Closing or the Financing or (ii) reduces the amount of the Financing to an amount that would be less than the amount that would be required to pay the Financing Amount (unless, in the case of a reduction to the Debt Financing, the Cash Equity is increased by the amount of any such reduction); provided, however, that Parent may (x) amend, modify or supply the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties to the Debt Commitment Letter, (y) amend or modify the Debt Commitment Letter to implement the "market flex" provisions included in the related fee letter, or (z) otherwise amend or replace the Debt Commitment Letter so long as (A) such amendment does not impose terms or conditions that would reasonably be expected to delay or prevent the Closing, (B) the terms of such amendment do not reduce the amount of the Financing to an amount that would be less than the amount that would be required to pay the Financing Amount (unless, in the case of a reduction to the Debt Financing, the Cash Equity is increased by the amount of any such reduction), (C) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of Alternative Debt Financing set forth below, (D) such amendment does not adversely affects the ability of Parent to enforce its rights against other parties to the Commitment Letters or the Definitive Agreements, (E) such amendment does not waive any remedy available to Parent or its Affiliates thereunder or adversely affect the ability of Parent or its Affiliates to enforce or cause the enforcement of its rights under the Financing, (F) such amendment does not allow for the early termination of the Debt Commitment Letter or (G) such Amendment cannot reasonably be expected to prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. In the event that any portion of the Debt Financing becomes unavailable or any of the Definitive Agreements shall be withdrawn, repudiated, terminated or rescinded, regardless of the reason therefor (other than the right of Parent to terminate this Agreement pursuant to Section 7.4 hereof) Parent will (i) use its reasonable best efforts to obtain from the same and/or alternative debt financing (in an amount, when taken together with the Cash Equity, at least equal to the Financing Amount) (the “Alternative Debt Financing”) and (ii) promptly notify the Company of such unavailability and the reason therefor. For the purposes of this Agreement (other than as expressly provided otherwise), the term “Debt Financing” shall be deemed to include any Alternative Debt Financing arranged in compliance herewith, and the terms “Debt Commitment Letter” and “Definitive Agreement” shall be deemed to include any commitment letter (or similar agreement) or definitive agreement with respect to any such Alternative Debt Financing; provided, that, notwithstanding anything to the contrary herein, in no event shall any Alternative Debt Financing or amendment with respect to the Debt Commitment Letter be deemed to adversely expand the obligations set forth in this Section 5.17 of the Company and its Subsidiaries.
(b) Parent shall promptly notify the Company in writing (i) of any breach or default by any party to a material provision of the Commitment Letter, (ii) of the receipt by any of Parent or Merger Sub or any of their Affiliates of any written notice from any Debt Financing Source with respect to any actual or threatened breach, dispute, termination or repudiation by any party to any Commitment Letter (but excluding in each case, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or any Definitive Agreement with respect thereto, (iii) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing necessary to fund the Financing Amount (taking into account the Cash Equity) on the terms, in the manner or from the sources contemplated by the Commitment Letters and (iv) of the termination or expiration in writing (or attempted or purported termination in writing, whether or not valid) of the Debt Commitment Letter. Parent shall keep the Company reasonably informed (and provide information reasonably requested by the Company in writing) of the status of its efforts to arrange the Financing and any other financing; provided that Parent shall not be obligated to provide any information that would jeopardize any attorney-client privilege on a reasonably current basis of the status of its efforts to consummate the Financing. Notwithstanding the foregoing, compliance by Parent with this Section 5.17(b) shall not relieve Parent of its obligation to consummate the transactions contemplated by this Agreement, whether or not the Financing is available.
(c) The Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide, and shall use reasonable best efforts to cause its Subsidiaries and their respective RepresentativesRepresentatives to provide, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the arrangement, marketing, preparation and closing of the Debt Financing as well as any necessary consents, amendments, repayments or terminations of existing financing arrangements) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and or any of its Subsidiaries), including using reasonable best efforts to to, upon Xxxxxx’s request:
(i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other virtual meetings, conference calls, presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the arrangers, potential lenders and/or rating agencies, in each casecase at reasonable times and locations mutually agreed, relating to the completion of the Financing by the Financing Sources, and upon reasonable notice;
(iiiii) assist in Parent with the preparation of (A) any customary offering documentsrating agency presentations, bank information memoranda, offering memoranda, confidential information memoranda, private placement memoranda, prospectuses and similar marketing documents and investor, lender presentations (including a customary authorization letter) and other similar customary documents and materials required in connection with the Debt Financing Sources (the “Marketing Material”) and otherwise assist in the marketing efforts of Parent and its Debt Financing; provided that no such Marketing Material shall be issued by the Company or its Subsidiaries;
(iii) assist Parent in connection with the preparation of (but not executing prior to the Closing), execution and delivery of any loan agreement, guarantees, pledge and security documents, customary closing certificates, perfection certificates, solvency certificate, and any other definitive financing documents as may be reasonably requested by Parent or the Debt Financing Sources and otherwise reasonably cooperating with Parent and the Debt Financing Sources in facilitating the pledging of collateral and the granting of security interests relating to the collateral if required by the Debt Commitment Letter, it being understood that such documents will not take effect until the Closing;
(iv) use commercially reasonable efforts to assist Parent in the preparation of pro forma financial information and pro forma financial statements (it being understood that the Parent shall be responsible for the preparation of (including costs and expenses of) such pro forma financial information and statements);
(v) at least four (4) Business Days prior to the Closing Date, provide all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by Parent at least nine (9) Business Days prior to the Closing Date that relates to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and customary beneficial ownership certifications;
(vi) cooperate in connection with the repayment or defeasance of the Credit Facilities and release, discharge and termination of the related Liens, including (i) delivering such payoff letters in accordance with Section 6.2, and (ii) delivering any UCC authorizations or other release and termination of the related Liens, and termination, defeasance or similar notices; and
(vii) promptly supplement the written information provided pursuant to this Section 5.17 to the extent that any such information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements were made. The foregoing notwithstanding, nothing in this Section 5.17 or otherwise shall require (i) the Company or any persons who are directors of the Company or any of its Subsidiaries prior to the Closing Date to pass resolutions or consents to approve or authorize any aspect of the Debt Financing; (ii) the Company or any of its Subsidiaries or any of their respective Representatives to enter into any agreement (other than customary authorization letters) or undertake any obligation which becomes effective prior to the Closing and that is not contingent on the occurrence of the Closing; (iii) the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur any other cost or expense in connection with the Debt Financing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of the Parent; (iv) the Company, any Subsidiary or any Representative thereof to deliver any opinion; (v) the Company or any of its Subsidiaries to take any action that could reasonably be expected to (A) conflict with, or result in any violation or breach of, or default under, the organizational documents thereof, any applicable Law, or any material contract to which it is a party (to the extent not entered into in contemplation of this Section 5.17(c)); (B) result in the waiver of any attorney-client privilege of, or conflict with any confidentiality obligations binding on, the Company or any of its Subsidiaries (so long as the Company has reasonably cooperated with Parent and used commercially reasonable efforts to permit disclosure to the extent permitted by such confidentiality obligations) or (C) cause any condition to the Closing set forth in ARTICLE VI not to be satisfied; (vi) any Representative of the Company to deliver any certificate or take any other action in any personal capacity; (vii) the preparation, in connection with the Debt Financing, of quarterly or annual financial statements for the Company with a different fiscal quarter or fiscal year end than the Company’s current fiscal quarter and fiscal year end dates; or (viii) the Company or any of its Subsidiaries to provide or cause to be provided any Excluded Information.
(d) Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation contemplated by this Section 5.17(d) (other than the preparation of its normal quarterly and annual financial statements). Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs, charges or expenses (including reasonable and documented out-of-pocket attorneys’ fees), suffered or incurred by them in connection with (i) the Debt Financing (including the arrangement or obtaining thereof), (ii) any action taken by them pursuant to this Section 5.17(d), or (iii) any information utilized in connection with the Debt Financing, in each case, other than as a result of fraud, bad faith, gross negligence or willful misconduct by or on behalf of such Person.
(e) Notwithstanding anything to the contrary, the Company shall be deemed to have complied with Section 5.17(c) for all purposes of this Agreement (including ARTICLE III) unless (i) the Company has materially breached its obligations under Section 5.17(c) and (ii) the Debt Financing has not been obtained and such failure arises primarily as a result of the Company’s willful breach of its obligations under Section 5.17(c). For the avoidance of doubt, the parties acknowledge and agree that the provisions contained in Section 5.17(c) represent the sole obligation of the Company and its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of the Financing, and no other provision of this Agreement (Bincluding the exhibits and schedules hereto) materials for rating agency presentations, shall be deemed to expand or modify such obligations.
(ivf) cooperate All non-public or otherwise confidential information regarding the Company or any of its Subsidiaries obtained by Parent or its Representatives pursuant to this Section 5.17 shall be kept confidential in accordance with the marketing efforts for any component Confidential Disclosure Agreement; it being understood that Parent and its representations may disclose such information to its Debt Financing Sources, other potential sources of capital, rating agencies and prospective lenders during syndication of the Debt Financing (including consenting or any Alternative Debt Financing, subject to and in accordance with customary confidentiality practices for syndicated processes of the Debt Financing Sources or customary market standards for dissemination of such type of information. The Company hereby consents to the use of the Company’s its and its Subsidiaries’ logoslogos in connection with the Debt Financing; provided 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 any of the 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Starrett L S Co), Merger Agreement (Starrett L S Co)
Financing. (a) Parent covenants Amneal has delivered to Impax a true, correct and agrees with complete copy of (i) an executed commitment letter (including all exhibits and schedules thereto, the Company“Debt Commitment Letter”) pursuant to which the Debt Financing Sources party thereto have agreed (on the terms and subject to the conditions thereof), on behalf to lend the amounts set forth therein (the “Debt Financing Commitments”) and (ii) the fee letter(s) referenced in the Debt Commitment Letter (the “Fee Letter”). As of itself the date of this Agreement, there are no agreements, side letters or arrangements (other than the Debt Commitment Letter and its Subsidiariesthe Fee Letter) to which Amneal is a party relating to any of the Debt Financing Commitments.
(b) Except as expressly set forth in the Debt Commitment Letter and the Fee Letter, that it shall take all action necessary to ensure that as of the Closing Datedate of this Agreement, Parent assuming the satisfaction of the conditions set forth in Section 7.01 and Merger Sub Section 7.02, there are no conditions precedent to the funding of the full amount of the Debt Financing. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 and the funding of the Debt Financing in accordance with the terms and conditions of the Debt Commitment Letter, the aggregate proceeds contemplated by the Debt Commitment Letter, together with other financial resources of Amneal will have funds, in the aggregate, be sufficient for (i) the payment repayment in full of all amounts outstanding under the Existing Credit Facilities of Impax and its Subsidiaries pursuant to their terms, (ii) to the extent necessary, for the repurchase of the aggregate Cash Consideration Impax Convertible Notes at par plus accrued but unpaid interest thereon and (iii) the satisfaction of Amneal’s obligations to pay any other amounts required to be paid pursuant to Article IIfees and expenses of or payable by Amneal in connection with this Agreement, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect Transactions and the Ancillary Transactions (the “Required Amount”). As of the Reserved Company Common Stockdate of this Agreement, the Debt Commitment Letter and the Fee Letter are in full force and effect, and constitute the aggregate amount valid and binding obligation of cash Amneal and, to the Knowledge of Amneal, each of the other parties thereto (subject in each case to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity whether considered in a proceeding in equity or at law). As of the date of this Agreement, Amneal is not in breach of any of the terms or conditions set forth in the Debt Commitment Letter or the Fee Letter. As of the date of this Agreement, assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 and the accuracy of the representations and warranties of Impax set forth in this Agreement in all material respects, (i) no event has occurred that, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of Amneal under the terms of the Debt Commitment Letter or (ii) would reasonably be expected to result in any of the conditions within its control in the Debt Commitment Letter not being satisfied in a timely manner. Amneal has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings Debt Commitment Letter or repayments of any existing indebtedness of the Company Fee Letter on or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after before the date of this Agreement. The Debt Commitment Letter has not been modified or amended as of the most recent audited financial statements date of this Agreement, and at least 40 days prior as of the date of this Agreement none of the respective commitments under the Debt Commitment Letter have been reduced, withdrawn or rescinded by Amneal or, to Amneal’s Knowledge, the Debt Financing Sources party thereto. Notwithstanding anything to the Closing Date and information regarding the business, operations and financial projections of the Companycontrary set forth in this Section 4.25(b), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary that the representations and reasonable warranties contained in this Section 4.25(b), are not true or correct in any respect, but all other conditions set forth in Section 7.01 and Section 7.02(a) are then satisfied and Amneal is otherwise is ready, willing and able to consummate the extent not unreasonably interfering with Transactions, then the business of representations and warranties set forth in this Section 4.25(b) shall be deemed to be true and correct in all respects in order to deem the Company and its Subsidiariescondition set forth in Section 7.02(a) satisfied, so long as the Closing occurs.
(c) Notwithstanding the foregoingThe obligations of Amneal under this Agreement are not subject to any conditions regarding Amneal’s, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document Affiliates’ or any other agreement or document related person’s ability to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity obtain financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions Transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financinghereby.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Business Combination Agreement (Atlas Holdings, Inc.), Business Combination Agreement (Impax Laboratories Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Holding Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, Holdings and shall Sub to use its reasonable best efforts to cause each obtain the full amount of its the financing contained in the Financing Commitments consistent with the terms specified and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested described in the Financing Commitments delivered to the Company by Parent Group; provided, however, it is expressly understood and agreed that Parent Group’s obligations to consummate the Merger on the terms and conditions specified herein are not subject to a financing condition or the results of Parent Group’s efforts to obtain the full amount of the financing required to effect the Closing pursuant to Section 1.03 hereof and to satisfy their obligations under Article II hereof, including, depositing (or causing to be deposited) with reasonable notice the Paying Agent and LaSalle sufficient funds to make all payments pursuant to Article II hereof.
(b) Parent Group will keep the Company reasonably informed of the status of the Financing Commitments and the Available Cash and any material developments with respect thereto.
(c) The Company shall provide, and will cause its officers and employees to provide, all necessary cooperation and information in connection with the arrangement and obtaining of the financing contained in the Financing Commitment as may be reasonably requested by Parent, including, without limitation, facilitating customary due diligence and arranging senior officers, as selected by Parent, to meet with prospective lenders and investors in customary presentations (provided including “road show” presentations and sessions with rating agencies), cooperation in the preparation and filing of any offering documents, the issuance of any comfort letter, the receipt of any auditors’ consents, certifications of the chief financial officer with respect to solvency matters, the delivery of consolidated pro forma financial information and the use of commercially reasonable efforts to cause each independent auditor to so cooperate or otherwise. Parent shall not amend, supplement, modify or terminate (whether unilaterally or by mutual consent), in a manner either materially adverse to the Company or to the consummation of the Merger, any Financing Commitment, or waive any rights thereunder, prior to the termination of this Agreement, without the written consent of the Company.
(d) The Company acknowledges that, prior to the Effective Time, Parent may, and Parent may request that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts take actions with respect to (i) provide information relating to prepaying, redeeming and/or obtaining the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion consent of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting to the use holders of the Company’s and its Subsidiaries’ logos; provided that outstanding Senior Notes in accordance with the terms of the indenture pursuant to which such logos are used solely in a manner that is not intended to notes were issued or reasonably likely to harm or disparage (ii) restructuring the Company Credit Facility. The Company agrees to cooperate with such efforts and provide such information 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing take such actions as may be reasonably requested by Parent as customary in connection Group with the Financingrespect thereto, including any amendments of any call for prepayment or redemption, or to renegotiate, as the case may be, the Senior Notes; provided, that (i) no such prepayment or redemption shall actually be made until substantially contemporaneous with or after, or, in the case of the Company’s call for prepayment, immediately prior to or its Subsidiaries’ existing credit agreementscontemporaneous with, currency the Effective Time and (ii) no such call for prepayment or interest hedging agreements; provided that no obligation of any redemption shall be required prior to the Effective Time unless the Company is permitted to condition such call for prepayment or redemption on the occurrence of the Company Effective Time or its Subsidiaries shall be effective under credit agreements, loan documents to withdraw such call for prepayment or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until redemption if the Effective TimeTime shall not have occurred on or prior to the applicable scheduled prepayment or redemption date; and provided, (vi) use its reasonable best effortsfurther, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take enter into any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing bank commitment that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them will become effective prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective RepresentativesTime. .
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Northwestern Corp), Merger Agreement (Northwestern Corp)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stockshall, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause each of its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Financing on the terms and conditions described in or contemplated by the Commitment Papers (including legalany “flex” provisions) to the extent required, tax, regulatory and accounting, to, provide all cooperation reasonably requested when taken together with cash or cash equivalents held by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of and the Company on the Closing Date and its Subsidiariesthe other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company ABL Credit Agreement and the Senior Secured Indenture and to pay cash in lieu of fractional shares in accordance with Section 4.2(f), including using reasonable best efforts to (i) provide information relating to maintain in effect the Company and Commitment Papers, (ii) satisfy (or, if determined advisable by Parent in its Subsidiaries to reasonable discretion, obtain the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3waiver of) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period on or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date all conditions to funding and information regarding the business, operations and financial projections availability of the Company), (ii) participate Financing contained in the Commitment Papers and cause senior management such definitive agreements for the Financing to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agenciesbe entered into pursuant thereto, in each case, relating to that are within the completion control of the Financing by the Financing SourcesParent, (iii) assist negotiate and enter into definitive agreements with respect to the Financing contemplated by the Commitment Papers on terms and conditions not materially less favorable to Parent, taken as a whole, than those described in the preparation Commitment Papers (including any “flex” provisions contained therein) on or prior to the Closing Date, (iv) enforce its rights under the Commitment Papers and (v) in the event that all conditions to funding and availability of the Financing contained in the Commitment Papers have been satisfied or waived, consummate the Financing contemplated by the Commitment Papers. In the event any portion of the Financing contemplated by the Commitment Papers becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Commitment Papers for any reason and such portion is necessary to refinance in full all amounts outstanding under the Company ABL Credit Agreement and the Senior Secured Indenture, to pay cash in lieu of fractional shares in accordance with Section 4.2(f) and to pay the fees and expenses relating to the Merger and the Financing (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for Parent shall promptly notify the Financing, Company in writing and (B) materials for rating agency presentationsParent shall, (iv) cooperate with the marketing efforts for any component and shall cause each of 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)to, (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of obtain, as promptly as practicable following the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Financing Sources that the public side versions occurrence of such documentsevent, if any, do not include material non-public information about the Company or its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise for any such portion from alternative sources (the “Alternative Financing”) in connection with the transactions contemplated by this Agreementan amount not less than such unavailable and necessary funds and which (1) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall does not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on involve terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.that,
Appears in 2 contracts
Samples: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.)
Financing. (a) Parent and Merger Sub shall use their respective reasonable best efforts to arrange and consummate the Financing on the terms and conditions described in the Commitment Letter at or prior to the Closing (or on terms more favorable in the aggregate to Parent and Merger Sub) including by: (i) maintaining in effect and enforcing the Commitment Letter and complying with their respective obligations thereunder; (ii) negotiating, entering into and delivering the definitive agreements with respect to the Debt Financing (the “Definitive Financing Agreements”) on the terms and conditions contained in the Commitment Letter and, to the extent such definitive agreements are executed and delivered prior to the Effective Time, maintaining in effect and enforcing such definitive agreements; (iii) satisfying (or, if deemed advisable by Parent, seeking the waiver of) on a timely basis all terms, covenants and agrees with conditions set forth in the Company, on behalf of itself Commitment Letter and its Subsidiaries, that it shall take all action necessary the Definitive Financing Agreements applicable to ensure that as of the Closing Date, Parent and Merger Sub will have funds, that are within their control; (iv) participating in and assisting with the aggregate, sufficient for preparation of rating agency presentations and meetings with rating agencies; and (iv) the payment upon satisfaction of all of the aggregate Cash Consideration conditions precedent under Section 8.1 and any Section 8.2 (other amounts required than those conditions that by their nature are to be paid pursuant satisfied at the Closing, but subject to Article IIthe satisfaction or waiver of those conditions), consummating or causing the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect consummation of the Reserved Company Common Stock, Financing including by enforcing their rights under the Commitment Letter and the aggregate amount of cash to be paid pursuant Definitive Financing Agreements to the terms of Section 1.9 in respect of extent necessary at such time to fund the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the FinancingRequired Amount.
(b) The Company shall, Parent shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of apprise the Company and its Subsidiaries), including using reasonable best efforts to (i) provide information of material developments relating to the Financing and shall give the Company prompt notice of any material adverse change with respect to such Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and its Subsidiaries in any event within one (1) Business Day the same comes to the Financing Sources that is reasonably available to the Company and is customary for completion Knowledge of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availableParent, unaudited financial statements (excluding footnotes) for if at any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days time prior to the Closing Date and information regarding (i) the business, operations and financial projections Commitment Letter or any of the Company)commitments with respect to the Debt Financing thereunder or any Definitive Financing Agreement, as applicable, shall expire or be terminated for any reason, (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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)reason, (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the FinancingDebt Financing becomes unavailable or (iii) any Financing Source or any other Person that is a party to any Commitment Letter breaches, defaults, terminates or repudiates any provisions thereunder or threatens in writing to do any of the Company foregoing. Parent and Merger Sub shall comply with its covenants in Section 6.11(b) with respect not amend, alter or replace, or agree to amend, alter or replace, the Commitment Letter as so amended, replaced, supplemented in any manner that would (A) impose new or additional conditions or otherwise modified and with respect to such other debt expand, amend or equity financing modify any of the conditions to the same extent that the Company would have been obligated to comply with respect to receipt of the Financing, provided(B) reduce the amount of cash proceeds from the Financing available to fund the Required Amount, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modifyin each case, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) that would materially adversely impact affect the ability of Parent Parent, Merger Sub or their respective Affiliates to enforce its their respective rights against the other parties to the Commitment Letter or the Definitive Financing Agreements, Agreements or (C) prevent, impede reasonably be expected to prevent or materially impair or delay the consummation ability of Parent to consummate the Merger and the other transactions contemplated by this Agreement, in each case with respect to the foregoing sub-clauses (A) and (B) without the prior written consent of the Company (it being understood and agreed that Parent and Merger Sub may amend the Commitment Letter solely 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 and to reflect assignments and replacements of lenders in accordance with the terms of the syndication provisions of the Commitment Letter with respect to the Debt Financing, provided that no such addition, assignment or replacement would reasonably be expected to prevent or materially impair or delay the ability of Parent to consummate the transactions contemplated by this Agreement).
(c) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter for any reason, Parent and Merger Sub shall use their reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient, when taken together with the available cash of Parent, to fund the Required Amount and pay any related fees and expenses earned, due and payable as of the Closing Date (the “Alternate Financing”) and to obtain, and, if obtained, will provide the Company with true, correct and complete copies of, any new financing commitment that provides for at least the same amount of financing as such Commitment Letter as originally issued, to the extent needed to fund the Required Amount (the “Alternate Commitment Letter”). This In the event any Alternate Financing is obtained and an Alternate Commitment Letter is entered into in accordance with this Section 6.11 7.10(c), (i) any reference in this Agreement to “Debt Financing” shall mean the debt financing contemplated by the Commitment Letter as modified pursuant to clause (ii) below, and (ii) any reference in this Agreement to the “Commitment Letter” (or defined terms that use such phrase) shall be deemed to apply to include the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the extent not superseded by an Alternate Commitment Letter, at the time in question and any Alternate Commitment Letter to the extent then in effect. In furtherance of and not in limitation of the foregoing, in the event that (i) any portion of the Financing shall structured as a capital markets financing is unavailable, regardless of the reason therefor and (ii) all closing conditions contained in Section 8.1 and Section 8.2 have been satisfied or waived (other than those conditions that by their nature are to be deemed satisfied or waived at the Closing, provided that such conditions are capable of being satisfied as of such day assuming the Closing was to refer instead to occur on such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by day), then Parent or its Representatives Merger Sub shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to consummate, or cause to be consummated, and shall use, or cause to be used, the proceeds of the Bridge Financing in lieu of such capital markets financing no later than one (1) Business Day following the satisfaction or waiver of the applicable conditions set forth in clause (ii) above to consummate the Closing when Parent and Merger Sub are required to do so pursuant to this Section 6.11 shall be kept confidential 2.2; it being understood that such obligations to use the Bridge Financing (including any alternative bridge financing contemplated by any Alternate Financing obtained in accordance with this Agreement) shall exist without regard to the Confidentiality Agreementthen market conditions or other general economic conditions, including the interest rate and cost of any portion of the Financing structured as a capital markets financing and regardless of whether or not it is commercially reasonable to do so.
Appears in 2 contracts
Samples: Merger Agreement (Zimmer Holdings Inc), Merger Agreement (LVB Acquisition, Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Buyers shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 (ix) provide information relating maintain in effect the Financing Commitments and 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 respect to the Company and its Subsidiaries to Debt Financing (the "Debt Financing Sources Agreement") so that the Debt Financing Agreement is in effect as soon as reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for practicable but in any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to event no later than the Closing Date and information regarding (z) consummate the business, operations and financial projections Financing at or prior to Closing. Subject to the satisfaction or waiver of the Company)conditions to Closing in Article V of this Agreement, (ii) participate and cause senior management Buyers agree to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with use the rating agencies, in each case, relating to the completion of the Financing bridge facility contemplated by the Financing SourcesCommitments to cause the Closing to occur effective as of no later than October 31, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component 2004. Buyers shall keep IR reasonably informed of the Financing (including consenting to the use status of the Company’s financing process relating thereto. IR shall cause the Sellers and its Subsidiaries’ logos; provided that and their respective officers and employees to provide 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing cooperation as may be reasonably requested by Parent as customary Buyers in connection with the FinancingDebt Financing and any offering of debt securities privately or in a registered offering, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise 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) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment including without limitation, participation in good faith in meetings, due diligence sessions, road shows, the preparation of offering memoranda, registration statements or other appropriate disclosure documents and the execution and delivery of underwriting, placement or similar feeagreements, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to whose effectiveness shall be conditioned on the Financing (or alternative financing that Parent may raise in connection with closing of the transactions contemplated by this Agreement) or (iv) be required to incur any other liability . If necessary in connection with the Debt Financing, in the event that Closing has not occurred due solely to the failure 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 (or any alternative financing the "September Financial Statements").
(b) As reasonably requested by Buyers and necessary to the consummation of the Debt Financing, IR shall use commercially reasonable efforts to (i) to ensure that Parent PWC will conduct a review of the Six-Month Financial Statements and the September Financial Statements, as the case may raise 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 transactions offering of securities of the type contemplated by this Agreement). Parent the Debt Financing, (iiii) shall promptly, upon request 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 Company, reimburse the Company Debt Financing and (iv) provide Buyers with documents reasonably requested by Buyers in order for all Buyers to obtain title insurance and a current survey with respect to material Owned Real Property. All reasonable and documented out-of-pocket costs and expenses actually incurred by IR or Sellers (including, without limitation, the Companyfees 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 its Subsidiaries the Financing Commitments or their respective Representatives the Debt Financing Agreement expire or are terminated prior to the Closing, in connection with whole or in part, for any reason, Buyers shall (i) promptly notify IR of such expiration or termination and the cooperation of the Company reasons therefor and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except use its reasonable efforts promptly to arrange for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with 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 (iiii) 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 material breach by any of them prior to the Effective Time in connection with the arrangement party of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new Commitments (or modify, in a manner adverse to Parent, any existingdefinitive agreements entered into pursuant thereto) conditions precedent or contingencies (ii) any condition to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (under any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability Commitment becoming incapable of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingbeing satisfied.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Dresser-Rand Group Inc.), Equity Purchase Agreement (Ingersoll Rand Co LTD)
Financing. (a) Parent covenants From and agrees with after the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as date hereof until the earlier of the Closing Date, Parent Completion and Merger Sub will have fundsthe termination of this Agreement pursuant to and in accordance with Section 9, in a timely manner so as not to delay the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article IICompletion, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Parties shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable to consummate, no later than the Company and its Subsidiaries date the Completion is required to occur pursuant to this Agreement, the Financing Sources that is reasonably available on the terms set forth in the Debt Agreement and (ii) satisfy or cause to be satisfied (or waived) on a timely basis all conditions to funding described in the Company and is customary for completion Debt Agreement.
(b) In the event any portion of the Financing contemplated by the Financing Sources (including audited consolidated financial statements Debt Agreement becomes unavailable regardless of the Company covering reason therefor (as determined by Parent in its reasonable discretion after consulting with the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the CompanyFinancing Sources), (i) Parent shall promptly notify the Company in writing of such unavailability and the reason therefor and (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriateand shall cause each of its Subsidiaries to use their reasonable best efforts, to have its independent accountants provide their reasonable cooperation and assistanceobtain as promptly as practicable following the occurrence of such event, alternative debt financing for any such portion from alternative sources (viithe “Alternative Financing”) use its reasonable best efforts to permit any in an amount sufficient, when taken together with cash and marketable securities of the Company Parent and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall (but not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of including the Company and its Subsidiaries) and the other sources of funds immediately available to Parent at the Completion to pay the Financing Amounts and that 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 Agreement. In addition to the foregoing, the Parent may also obtain Alternative Financing at its sole discretion which replaces the Financing, so long as the Parent is able to give the representations set forth in Section 6.2(h) with respect to such Alternative Financing as at the date such Alternative Financing becomes effective (with references to “date hereof,” the “Financing,” “Financing Sources” and “Debt Agreement” (and other like terms) in that section deemed to have been replaced with references to the date such Alternative Financing, the commitments thereunder and the agreements with respect thereto becomes effective).
(c) Notwithstanding To the foregoingextent requested in writing by the Company from time to time, until the Effective Time occursParent Parties shall provide the Company with updates on a reasonably current basis on the status of the Financing. The Parent Parties shall, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take the extent not publicly filed, provide copies of all executed credit agreements and indentures and any action in amendments, modifications, replacements or waivers relating to the capacity of a director of the Company Financing or any of its Subsidiaries with respect Indebtedness that is a takeout to the Financing (or alternative financing notice that Parent may raise in connection with the transactions contemplated by this Agreementsuch documents have been publicly filed) if such Representative believes such action would be inconsistent with their fiduciary duties, within one Business Day of execution thereof and (ii) be required to pay provide prompt written notice (and in any commitment event, within two Business Days) of (A) the receipt of any written notice or other similar feewritten communication from any Financing Source with respect to such Financing Source’s failure or anticipated failure to fund its commitments under any definitive agreements relating to the Financing, (iiiB) have any liability material breach or material default by any party to such definitive agreements of which any Parent Party obtains knowledge, (C) any actual or, to the knowledge of any Parent Party, threatened in writing, withdrawal, repudiation, or termination of any of such definitive agreements or (D) receipt of written notice or other written communication from any Financing Source relating to a material dispute or disagreement with respect to the obligation to fund all 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement portion of the Financing and at Completion (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or the Debt Agreement); provided that in no event will the Parent Parties be under any obligation to disclose any information utilized that is subject to attorney-client or similar privilege (provided that the Parent Parties shall use their respective reasonable best efforts to cause any such information to be disclosed in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except a manner that would not result in the event that loss of any such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representativesprivilege).
(d) In Notwithstanding anything contained in this Agreement to the event contrary, the Parent Parties expressly acknowledge and agree that the Commitment Letter is amended, replaced, supplemented or otherwise modifiedtheir obligations under this Agreement, including as a result of their obligations to consummate the Completion, are not conditioned in any manner upon the Parent Parties obtaining alternative the Financing or any other financing. To the extent Parent obtains Alternative Financing pursuant to Section 7.6(b) or amends, replaces, supplements, modifies or if Parent substitutes other debt or equity financing for all or a portion waives any of the Financing, references to the Company “Financing,” “Financing Sources” and “Debt Agreement” (and other like terms in this Agreement) shall comply with its covenants in Section 6.11(b) be deemed to refer to such Alternative Financing, the commitments thereunder and the agreements with respect to thereto, or the Commitment Letter Financing as so amended, replaced, supplemented supplemented, modified 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingwaived.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Transaction Agreement (Horizon Therapeutics Public LTD Co), Transaction Agreement (Amgen Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each of its Merger Sub to take, all actions and their respective Representativesto do, including legalor cause Merger Sub to do, taxall things reasonably necessary, regulatory proper or advisable to arrange, and accountingconsummate as soon as practicable after the date hereof, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing on the terms and conditions described in the Financing Commitments (provided that such requested cooperation does that, subject to the provisions of this Section 6.14(a), Parent and Merger Sub may replace or amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not unreasonably interfere with executed the ongoing operations Debt Financing Commitments as of the Company and its Subsidiariesdate hereof, or otherwise amend the Financing Commitments so long as such replacement or amendment would not adversely impact in any material respect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby), including using reasonable best efforts to (i) maintain in effect the Financing Commitments, subject to the foregoing replacement and amendment rights, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Financing set forth in the Financing Commitments that are within their control (including by consummating the Equity Financing pursuant to the terms of the Equity Financing Commitments and by assisting in the syndication or marketing of the Debt Financing contemplated by the Debt Financing Commitments) and (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Financing Commitments or on other terms acceptable to the Parent that would not adversely impact in any material respect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby. Subject to the terms and conditions contained herein, at the Closing Parent shall draw down on the Debt Financing if the conditions to the Debt Financing Commitments are then satisfied. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not materially less beneficial to Parent and Merger Sub (as determined in the reasonable judgment of Parent) in an amount sufficient to consummate the transactions contemplated by this Agreement. Parent shall keep the Company reasonably apprised of material developments related to the Financing, and shall provide information relating a copy of each document related to the Financing to the Company promptly after such document becomes available.
(b) Prior to the Closing, the Company shall provide to Parent and Merger Sub, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause the respective officers, employees and advisors, including legal and accounting, of the Company and its Subsidiaries to, provide to the Financing Sources Parent and Merger Sub all cooperation reasonably requested in writing by Parent that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availablenecessary, unaudited financial statements (excluding footnotes) for any interim period proper or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary advisable in connection with the Financing, including any amendments (i) participating in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of any of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and similar documents necessary, proper or advisable in connection with the Company’s or its Subsidiaries’ existing credit agreementsFinancing, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of (iii) furnishing Parent and Merger Sub with financial and other pertinent information regarding the Company and its Subsidiaries until as may be reasonably required under the Effective TimeDebt Commitments (all such information in this clause (iii), the "Required Information"), (viiv) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts taking all actions reasonably necessary to permit any the lenders involved in the Financing to evaluate the Company's current assets, cash management and marketable securities accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements, and (v) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof, together with the cash at the Company and its Subsidiaries Subsidiaries, to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in on the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters Closing Date to consummate the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement)Merger. Parent (i) shall promptlyshall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-of- pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by in connection with the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence performance of the Company, any provisions of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement6.14(b).
Appears in 2 contracts
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as Until Discharge of the Closing DateFirst Lien Obligations has occurred, Parent if any Obligor shall be subject to any Insolvency Proceeding and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting First Lien Creditors consent to the use of the Company’s and its Subsidiaries’ logos; provided that cash collateral (as such logos are used solely term is defined 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 Section 363(a) of the Company Bankruptcy Code; herein, “Cash Collateral”) on which any First Lien Creditor has a Lien or any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities Obligor to obtain financing provided by any First Lien Creditor under Section 364 of the Company Bankruptcy Code or any similar Bankruptcy Law (such financing, together with any Cash Collateral use, collectively a “DIP Financing”), then each Second Lien Creditor agrees that it will consent to such Cash Collateral use and its Subsidiaries raise no objection to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the such DIP Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligenceand, to the extent customary and reasonable and the Liens securing the First Lien Obligations are discharged, subordinated to or pari passu with such DIP Financing, each Second Lien Creditor will subordinate its Liens in the Collateral to the extent not unreasonably interfering Liens securing such DIP Financing. If any First Lien Creditor offers to provide DIP Financing that meets the requirements set forth above, each Second Lien Creditor agrees that it shall not, directly or indirectly, (x) provide or offer to provide DIP Financing or support any DIP Financing secured by a Lien senior to or pari passu with the business Liens securing the First Lien Obligations, or (y) request or accept any form of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document adequate protection or any other agreement relief except as provided in Section 9(e)(ii). In connection with any DIP Financing, if any Liens on the Collateral held by First Lien Creditors are subject to a surcharge or document related are subordinated to an administrative priority claim, a professional fee “carve out,” or fees owed to the Financing (United States Trustee, then the Liens on the Collateral of each Second Lien Creditor shall also be subordinated to such interest or alternative financing that Parent may raise in connection claim and shall remain subordinated to the Liens on the Collateral of First Lien Creditors consistent with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Intercreditor Agreement (RS Properties I LLC), Intercreditor Agreement (Sands Brothers Venture Capital Ii LLLC)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause use its Subsidiaries reasonable best efforts to, and shall use its reasonable best efforts to cause each of its respective Affiliates and their respective Representatives, including legal, tax, regulatory and accounting, Representatives to, provide take all cooperation reasonably requested by Parent with reasonable notice in connection with actions and do all things necessary, proper or advisable to obtain the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations net proceeds of the Company and its Subsidiaries)Financing, including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for or any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agenciesSubstitute Financing, in each case, relating on the terms and subject only to the completion of conditions expressly set forth in the Financing Commitment Letters (including any “market flex” provisions set forth in any Debt Letter) and subject to any modifications permitted by this Section 5.04 at or prior to the Closing Date, including (i) maintaining in effect the Financing SourcesCommitment Letters and complying with all of their respective obligations thereunder to the extent required as a condition to accessing such Financing, (ii) negotiating, entering into and delivering definitive agreements with respect to the Financing (the “Definitive Agreements”) on the terms contained in the Financing Commitment Letters (including any “market flex” provisions set forth in any Debt Letter) (or with other terms reasonably acceptable to Parent and without any Prohibited Modifications) and subject only to the conditions expressly set forth in the Financing Commitment Letters on the date of this Agreement, (iii) assist satisfying on a timely basis all conditions in the preparation Financing Commitment Letters and the Definitive Agreements that are applicable to Parent or any of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentationsits Affiliates or Representatives that are within their control, (iv) cooperate with if required under the marketing efforts for any component of the Financing (including consenting Debt Letters, entering into amendments to the use of Definitive Agreements with respect to the Company’s Debt Financing to give effect to any “market flex” provisions contained in any Debt Letter 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), (v) execute subject to the satisfaction of the conditions set forth in Section 7.01 and deliver Section 7.03 (or use reasonable best efforts other than those conditions to obtain from its advisorsbe satisfied substantially concurrently with the Closing), consummating, and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors)obtaining the net proceeds of, credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary no later than the Closing.
(b) In the event that all conditions set forth in connection with the FinancingArticle VII have been satisfied or waived or, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries upon funding shall be effective under credit agreementssatisfied or waived, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements each of the Company Parent and its Subsidiaries until the Effective Time, (vi) Merger Sub shall use its reasonable best effortsefforts to, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) shall use its reasonable best efforts to permit cause each of their respective Affiliates and Representatives to, cause each applicable Person that is a party to any cash and marketable securities of the Company and its Subsidiaries Financing Commitment Letters to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to fund the Financing Sources authorizing in accordance with its terms on the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, Closing Date to the extent customary the proceeds thereof are required to pay the Required Amount and consummate the Merger and the other transactions contemplated thereby. Each of Parent and Merger Sub shall not, and shall use its reasonable best efforts to cause its Affiliates and Representatives not to, take or refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of the Financing (other than as expressly provided by the Debt Letters in respect of the “Backstop Revolving Credit Facility” and the “Backstop L/C Facility” (as such terms are defined in the Debt Commitment Letter)) to be available and funded in the Required Amount at or prior to the extent not unreasonably interfering with the business Closing; provided that Parent shall be permitted to terminate commitments in respect of the Company and its Subsidiaries“Backstop Term Loan Facility” (as such term is defined in the Debt Commitment Letter).
(c) Notwithstanding Upon reasonable request by the foregoingCompany from time to time, until Parent shall keep the Effective Time occursCompany 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, neither including advising and updating the Company, any in a reasonable level of its Subsidiariesdetail, nor their respective Representativeswith respect to status, shall (i) be required to take any action in the capacity of a director proposed closing date of the Company or any Financing and material terms of its Subsidiaries the Definitive Agreements and providing copies of substantially final drafts of the primary Definitive Agreements (including, with respect to the Financing Debt Financing, the credit agreement) with sufficient time for the Company to review with its counsel (or alternative financing provided that Parent any fee letter and any engagement letter for the placement of debt securities may raise be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the transactions contemplated conditionality, enforceability, amount, availability or termination of the Financing). Without limiting the generality of the foregoing, Parent shall give the Company prompt written notice (i) of any breach or default (or alleged or purported 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 this Agreement) if such Representative believes such action would be inconsistent with their fiduciary dutiesany party to any of the Financing Commitment Letters or Definitive Agreements, (ii) be required to pay of any commitment termination or other similar fee, repudiation (iiior alleged or purported termination or repudiation) have of any liability or any obligation under any credit agreement or any related document or any other agreement or document related to of the Financing (Commitment Letters or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement)Definitive Agreements, and (iii) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against if for any and reason at any time Parent believes that it may not be able to obtain all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them prior to the Effective Time in connection with the arrangement portion of the Financing and on the terms, in the manner or from the sources contemplated by the Financing Commitment Letters or any Definitive Agreement. Parent shall provide any information utilized in connection therewith (other than historical information reasonably requested by the Company relating to any of the circumstances referred to in clauses (i), (ii) or (iii) of the immediately preceding sentence promptly after the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that makes any such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representativesrequest.
(d) In Neither Parent nor Merger Sub shall, without the event Company’s prior written consent: permit any amendment, supplement, modification, assignment, termination, replacement or waiver to be made to, or consent to any waiver of, any provision of or remedy under any of the Financing Commitment Letters or Definitive Agreements if such amendment, supplement, modification, termination, assignment, replacement or waiver would or would reasonably be expected to (1) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) below the Required Amount (when taken together with other sources of funds immediately available to Parent (including additional equity commitments that will be funded at or prior to Closing)); provided that Parent shall be permitted to terminate commitments in respect of the “Backstop Term Loan Facility” (as such term is defined in the Debt Commitment Letter is amendedLetter), replaced, supplemented (2) impose new or additional conditions to the Financing or otherwise modifiedexpand, including as a result of obtaining alternative financing, amend or if Parent substitutes other debt or equity financing for all or a portion modify any of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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 existing conditions to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B3) adversely impact the ability of Parent or Merger Sub to enforce its rights against any other parties party to any of the Financing Commitment Letters or Definitive Agreements or (4) otherwise expand, amend, modify or waive any provision of any of the Financing Commitment Letters or Definitive Agreements in a manner that in any such case would or would reasonably be expected to prevent, delay or make less likely (A) the funding of the Financing in an amount no less than the Required Amount (or satisfaction of the conditions to the Commitment Letter Financing) at or prior to the Definitive Financing Agreements, Closing or (CB) prevent, impede or delay the timely consummation of the Merger and the other transactions contemplated by hereby (the effects described in clauses (1) through (4), the “Prohibited Modifications”); provided that Parent may amend the Debt Letters to add Debt Financing Entities that have not previously executed the Debt Letters as of the date of this AgreementAgreement without the prior written consent of the Company. This Section 6.11 shall be deemed to apply to In the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other event that any new debt or equity financing and commitment letters or fee letters are entered into in accordance with any termination, amendment, replacement, supplement, modification or waiver of any Financing Commitment Letter or Definitive Agreement permitted pursuant to this Section 5.04(d), references to the “Financing,” “Debt Financing Parties,” “Definitive Agreements” and “Financing Commitment Letters” (and other like terms in this Agreement) shall be deemed to refer instead to the Financing as so terminated, amended, supplemented, modified, waived or replaced for all purposes of this Agreement and each such alternative financingterm shall be construed accordingly. Parent shall promptly deliver to the Company copies of any termination, amendment, supplement, modification, waiver or replacement of any Financing Commitment Letter or Definitive Agreement and each other agreement entered into in connection therewith (provided that any fee letter may be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the conditionality, enforceability, amount, availability or termination of the Financing).
(e) All non-public If any portion of the Financing becomes, or otherwise confidential information regarding is expected to become, unavailable for any reason (other than on account of Parent’s termination of commitments in respect of the “Backstop Term Loan Facility” (as such term is defined in the Debt Commitment Letter)), Parent shall, and shall cause its Affiliates and relevant Representatives, as promptly as practicable following the occurrence of such event, to (i) notify the Company obtained by in writing thereof and the reason therefor, (ii) use its reasonable best efforts to obtain substitute financing in an amount sufficient, when taken together with any available portion of the Financing, to enable Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential consummate the Merger and the other transactions contemplated hereby in accordance with its terms (including to pay the Confidentiality Agreement.Required Amount) and which does not include any Prohibited Modification or condition to the consummation of such substitute financing that is more onerous in any significant respect than the conditions set forth in the Financing Commitment Letters as of the date of this Agreement (any such substitute financing, the “Substitute Financing”) and (iii) use its reasonable best efforts to obtain a new financing commitment letter that provides for such Substitute Financing and, promptly after execution thereof, deliver to the Company true, complete and correct copies of the new commitment letter and all related fee letters (provided that any such fee letter may be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the conditionality, enforceability, amount, availability or termination of the Financing) and related definitive financing documents with respect to such Substitute Financing; provided, however, that Parent shall not be required to obtain financing that includes terms and conditions materially less favorable (taking into account any “market flex” provisions) to Parent, relative to those in the portion of the Financing being replaced. Upon obtaining any
Appears in 2 contracts
Samples: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Sub I shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with (taking into account the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations expected timing of the Company Marketing Period) to take (or cause to be taken) all actions, and its Subsidiariesto do (or cause to be done) all things necessary, proper or advisable to consummate and obtain the proceeds of the Debt Financing contemplated by the Debt Financing Commitments on the terms and conditions described in the Debt Financing Commitments (including any flex provisions applicable thereto), including using reasonable best efforts to (i) provide information relating to negotiate definitive agreements with respect thereto on the Company terms and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources conditions (including audited consolidated financial statements the flex provisions) contained therein or on other terms not materially less favorable, in the aggregate, to Parent (as determined in the reasonable judgment of the Company covering the three Parent) and not in violation of this Section 5.15(a) (3including clauses (A)-(C) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Companybelow), (ii) participate satisfy (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent, Merger Sub and cause senior management to participate Merger Sub I in a reasonable number of meetings the Debt Financing Commitments that are within its control and otherwise comply with Financing Sources its obligations thereunder and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) pay related fees and sessions with expenses on the rating agencies, in each case, relating to the completion of the Financing by the Financing SourcesClosing Date, (iii) assist maintain in effect the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate Debt Financing Commitments in accordance with the marketing efforts terms thereof (except for any component of the Financing (including consenting to the use of the Company’s amendments 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action supplements not prohibited by this Section 5.1, (viii5.15(a)) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent Agreement are consummated or this Agreement is terminated in accordance with their fiduciary dutiesits terms, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or and (iv) enforce its rights under the Debt Financing Commitments in the event of a breach by any counterparty thereto that would reasonably be required expected to incur any other liability in connection with materially impede or delay the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement)Closing. Parent (i) shall promptlyhave the right from time to time to amend, upon request by supplement, amend and restate or modify the CompanyDebt Financing Commitments; provided, reimburse that any such amendment, supplement, amendment and restatement or other modification shall not, without the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation prior written consent of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, adversely modify any existing) conditions precedent or contingencies to the funding on the Closing Date of the Debt Financing as set forth in the Commitment Letter or Debt Financing Commitments as in effect on the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”)date hereof, (B) reduce the aggregate amount of the Debt Financing Commitments (including by changing the amount of fees to be paid or original issue discount of the Debt Financing as set forth in the Debt Financing Commitments) in a manner that would adversely impact in any material respect the ability of Parent to enforce its rights against other parties consummate the Merger or that would otherwise be expected to delay or impede the Commitment Letter or the Definitive Financing Agreements, Merger or (C) otherwise be reasonably expected to (I) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed , (II) make the funding of the Debt Financing as set forth in the Debt Financing Commitments less likely to apply occur or (III) adversely impact the ability of Parent, Merger Sub or Merger Sub I to enforce their rights against the other parties to the Commitment Letter Debt Financing Commitments or the definitive agreements with respect thereto. For the avoidance of doubt, but subject to the foregoing, Parent may amend, supplement, amend and restate, modify or replace the Debt Financing Commitments as so in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date of this Agreement or (y) to increase the amount of Indebtedness contemplated by the Debt Financing Commitments. For purposes of this Section 5.15, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted to be amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing by this Section 5.15(a) (and, if applicable, shall include any Alternative Financing used to satisfy the obligations under this Agreement) and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.“Debt Financing
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Urs Corp /New/), Merger Agreement (Aecom Technology Corp)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stockshall, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause each of its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to arrange and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with consummate the Financing on the terms and conditions described in or contemplated by the Commitment Letter (provided that such requested cooperation does not unreasonably interfere including any “flex” provisions) to the extent required, when taken together with cash or cash equivalents held by the ongoing operations of Parent and the Company on the Closing Date and its Subsidiaries)the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures and to pay cash in lieu of fractional shares in accordance with Section 2.2, including using reasonable best efforts to (i) provide information relating to maintain in effect the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing Commitment Letter, (ii) satisfy (or, if determined advisable by the Financing Sources (including audited consolidated financial statements of Parent, obtain the Company covering the three (3waiver of) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period on or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date all conditions to funding contained in the Commitment Letter and information regarding such definitive agreements for the business, operations and financial projections of the Company), (ii) participate and cause senior management Financing to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agenciesbe entered into pursuant thereto, in each case, relating to that are within the completion control of the Financing by the Financing SourcesParent, (iii) assist negotiate and enter into definitive agreements with respect to the Financing contemplated by the Commitment Letter on terms and conditions not materially less favorable to Parent, taken as a whole, than those described in the preparation Commitment Letter (including any “flex” provisions contained therein) on or prior to the Closing Date, (iv) enforce its rights under the Commitment Letter and (v) in the event that all conditions to funding contained in the Commitment Letter have been satisfied or waived, cause the applicable Financing Sources providing the Financing contemplated by the Commitment Letter to fund on the Closing Date the portion of the Financing contemplated by the Commitment Letter required to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures and to pay cash in lieu of fractional shares in accordance with Section 2.2 (including by enforcing the Commitment Letter against any breaching Financing Source). In the event any portion of the Financing contemplated by the Commitment Letter becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Commitment Letter for any reason (other than as contemplated by the Commitment Letter, including as a result of entering into any Qualifying Bank Financing (as defined in the Commitment Letter) or issuing any debt securities) and such portion is necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for Parent shall promptly notify the Financing, Company in writing and (B) materials for rating agency presentationsParent shall, (iv) cooperate with the marketing efforts for any component and shall cause each of 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)to, (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit obtain, as promptly as practicable following the occurrence of such event, alternative financing for any such portion from alternative sources (the “Alternative Financing”) in an amount, when taken together with cash or cash equivalents held by the Parent and marketable securities of the Company on the Closing Date and its Subsidiaries to be made the other sources of funds available to Parent and/or Merger Sub at on the ClosingClosing Date, provided that sufficient to refinance in full all amounts outstanding under the Company shall Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and which (1) does not be prohibited from using cash involve terms and marketable securities conditions that, taken as a whole, are materially less beneficial to Parent than those contained in the ordinary course Commitment Letter, or from taking any action (2) would not prohibited by Section 5.1reasonably be expected to prevent, (viii) provide customary authorization letters to materially impede or materially delay the Financing Sources authorizing the distribution consummation of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement. To the extent requested by the Company from time to time, Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange the Financing. Without limiting the generality of the foregoing, Parent shall promptly notify the Company in writing (x) if such Representative believes such action would there exists any material breach, material default, repudiation, cancellation or termination by any party to the Commitment Letter (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be inconsistent with their fiduciary dutiesexpected to give rise to any material breach, material default, repudiation, cancellation or termination) of which Parent obtains knowledge, (iiy) be required to pay of the receipt by Parent or any commitment of its Subsidiaries of any written notice or other similar feewritten communication from any Financing Source party to the Commitment Letter asserting any actual material breach, material default, repudiation, cancellation or termination by any party to the Commitment Letter or (iiiz) have if for any liability reason Parent or any obligation under of its Subsidiaries believes in good faith that there is (or there is reasonably likely to be) a material dispute or disagreement between or among any credit agreement parties to the Commitment Letter or any related document or any other agreement or definitive document related to the Financing (or alternative financing that Parent may raise in connection with respect to the transactions obligations to fund the Financing contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Commitment Letter. None of Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, nor any of its Subsidiaries or their respective Representatives in connection with shall (without the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence written consent of the Company, such consent not to be unreasonably withheld, delayed or conditioned) consent or agree to any of its Subsidiaries amendment, replacement, supplement or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financingmodification to, or if Parent substitutes other debt or equity financing for all or a portion any waiver of the Financingany provision under, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements relating to the Financing if such amendment, replacement, supplement, modification or waiver (1) decreases the aggregate amount of the Financing to an amount that would be less than an amount that would be required, when taken together with respect thereto cash or cash equivalents held by the Parent and the Company on terms the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing, (2) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing, (3) could reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated by the Commitment Letter this Agreement, or (any such agreements the “Definitive Financing Agreements”), (B4) materially and adversely impact impacts the ability of Parent to enforce its rights against the other parties to the Commitment Letter; provided, however, that, for the avoidance of doubt, Parent may amend, replace, supplement and/or modify the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to similar entities as parties thereto who had not executed the Commitment Letter as so amendedof the date of this Agreement or increase the amount of commitments under the Commitment Letter. Upon any amendment, replacedsupplement or modification of the Commitment Letter, supplemented or otherwise modified and/or such other debt or equity financing and references Parent shall provide a copy thereof to the Financing shall be deemed to refer instead to such alternative financing.
Company (e) All non-public or otherwise confidential information regarding with only fee amounts and other economic terms, and the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential rates and amounts included in accordance with the Confidentiality Agreement.“flex” provisions, redacted, none of which redacted provisions would adversely affect the
Appears in 2 contracts
Samples: Merger Agreement (First Data Corp), Merger Agreement (Fiserv Inc)
Financing. (a) Parent covenants Prior to the Closing, the Sellers shall use reasonable best efforts to, and agrees cause the Transferred Subsidiaries and the other Indirect Subsidiaries and their respective directors, officers, employees, advisors and representatives to, provide to the Buyers, at the Buyers’ sole expense, all reasonable cooperation requested by the Buyers that is customary in connection with obtaining the CompanyDebt Financing, on behalf of itself including, but not limited to, (i) furnishing to the Buyers and its Subsidiariesthe Debt Financing Sources, that it as promptly as reasonably practicable, such customary financial and other information as the Buyers shall take all action necessary reasonably request in order to ensure that as of obtain the Debt Financing (ii) at least five (5) Business Days prior to the Closing Date, Parent providing all documentation and Merger Sub will have funds, in other customary information about the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, Transferred Subsidiaries and the aggregate amount of cash Indirect Subsidiaries as is reasonably requested by the Debt Financing Sources with respect to be paid pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and USA PATRIOT Act (iii) facilitating the payment granting of all fees liens and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing pledging collateral as may be reasonably requested by Parent as customary in connection with the FinancingBuyers, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any guarantee, security interest or pledge shall be executed, delivered or be effective until the occurrence of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments Closing and subject to such existing arrangements of the Company and its Subsidiaries until the Effective Timecompliance with applicable laws (including laws on financial assistance), (viiv) use its reasonable best effortspermitting the Debt Financing Sources to evaluate and appraise the Transferred Subsidiaries’ and the Indirect Subsidiaries’ current assets and liabilities, as appropriatecash management and accounting systems, to have its independent accountants provide their reasonable cooperation policies and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities procedures relating thereto for the purpose of the Company and its Subsidiaries to be made available to Parent establishing collateral and/or Merger Sub at security arrangements after the Closing, and (v) obtaining such payoff letters and collateral lien and/or security releases as are required by the Debt Financing Sources (and provided that the Company shall not be prohibited from using cash drafts of such payoff letters and marketable securities collateral and/or security releases are provided in the ordinary course or from taking any action not prohibited by accordance with Section 5.17.4(g)); provided, (viii) provide customary authorization letters however, that notwithstanding anything in this Agreement to the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Financing Sources that the public side versions of such documentscontrary, if any, do not include material non-public information about the Company or its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business none of the Company and its Subsidiaries.
(c) Notwithstanding Sellers, the foregoing, until Transferred Subsidiaries or the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, Indirect Subsidiaries shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (iiA) be required to pay any commitment or other similar feefee or consent fee (other than the Transferred Subsidiaries and Indirect Subsidiaries after Closing), (iiiB) have prior to the Closing any liability or any obligation under the Debt Commitment Letters, any credit loan agreement or certifications or any related document or any other agreement or document related to the Financing Debt Financing, (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (ivC) be required to incur prior to the Closing any other liability in connection with the Financing Debt Financing, (D) take any action that would (x) unreasonably interfere with its ongoing business operations or any alternative financing (y) conflict with or violate laws, or result in a contravention of, or that Parent may raise would reasonably be expected to result in connection with the transactions contemplated by this Agreement). Parent (i) shall promptlya violation or breach of, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Companyor default under, any of its Subsidiaries material contract to which it is a party, (E) be required to agree to provide any inducement or their respective Representatives in connection with the cooperation business to any of the Company Debt Financing Sources or (F) except only as will be executed, delivered and its Subsidiaries contemplated by this Section 6.11effective at the Closing (and subject to compliance with applicable laws (including laws on financial assistance), (ii) acknowledges and agrees thattake any corporate action or execute any consent approving, except for obligations of the Company’s Subsidiaries from and after the Effective Timeor executing any document or agreement relating to, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) Debt Financing. The Buyers shall indemnify and hold harmless Sellers, the Company, its Transferred Subsidiaries and their respective Representatives from and against the Indirect Subsidiaries for any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments costs and penalties expenses actually suffered or incurred by any of them prior to the Effective Time in connection with the arrangement of the Buyer Financing and or any information utilized in connection therewith (other than historical information relating to action taken by them at the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence request of the Company, any of its Subsidiaries or their respective RepresentativesBuyers pursuant to this Section 6.13.
(db) In The Buyers shall use their reasonable best efforts to (i) satisfy on a timely basis all conditions to funding set forth in such Debt Commitment Letters and the event conditions set forth for utilisation of the facilities described in the Debt Commitment Letters, (ii) obtain, at or prior to the Closing Date, the financing necessary such that the Commitment Letter is amendedBuyers will have at and after the Closing funds sufficient to pay the Required Amount, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall and (iii) comply with its covenants in Section 6.11(b) the Buyers’ obligations with respect to the conditions to the receipt of such Debt Financing under the Debt Commitment Letter as so amendedLetters. The Buyers shall give the Sellers prompt notice of any material breach by any party to the Debt Commitment Letters, replacedof which the Buyers becomes aware, supplemented or any termination of the Commitment Letters.
(c) The Buyers shall not amend, modify, alter, waive, replace or agree to amend, modify, alter, waive or replace (in any case whether by action or inaction), any term of the Commitment Letters or any facility documents entered into under or in connection with the Debt Commitment Letters (the “Facility Documents”), if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Buyer 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) beyond the amount necessary for the Buyers to sufficiently pay the Required Amount, or (y) imposes new or additional conditions or otherwise modified and with respect to such other debt expands, amends or equity financing modifies any of the conditions to the same extent that receipt of the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, Buyer Financing in a manner adverse that would reasonably be expected to Parent(I) delay or prevent the consummation of the transactions contemplated hereby when required pursuant to Section 2.2, any existing(II) conditions precedent or contingencies to make the funding on the Closing Date of the Buyer Financing as set forth in (or satisfaction of the Commitment Letter conditions to obtaining the Buyer Financing) less likely to occur or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (BIII) adversely impact the ability of Parent the Buyers to enforce its their rights against other parties to the Commitment Letter Letters or any other definitive agreements with respect thereto, and shall 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, proper or advisable to arrange the Definitive Buyer Financing Agreementson the terms and conditions described in the Commitment Letters and the Facility Documents, including using its reasonable best efforts to (i) maintain in effect the Commitment Letters and the Facility Documents, (ii) satisfy on a timely basis all conditions applicable to the Buyers to obtaining the Debt Financing at the Closing set forth therein that are within its control; and (iii) upon satisfaction of the conditions set forth in the Commitment Letters and the Facility Documents, consummate the Buyer Financing at or prior to the Closing. In the event any portion of the Buyer Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters and the Facility Documents, the Buyers shall promptly notify the Sellers of such unavailability and the reasons therefor (and in any event within one (1) Business Day thereof), and shall use their reasonable best efforts to arrange to obtain alternative financing as promptly as practicable from alternative sources on which do not contain any conditions to the receipt of such Buyer Financing which are materially less favorable, in the aggregate, to the Buyers and in an amount sufficient to consummate the transactions contemplated hereby promptly following the occurrence of such event (the “Alternative Financing”). The Buyers shall deliver to the Sellers copies of all agreements evidencing the Alternative Financing. The Buyers shall give the Sellers prompt written notice of (x) any material breach by any party to the Commitment Letters and the Facility Documents of which the Buyers becomes aware or any termination of the Commitment Letters and the Facility Documents, or (Cy) preventany material dispute or disagreement between or among the Buyers, impede or delay on the consummation one hand, and the Debt Financing Sources on the other hand, or, to the knowledge of the Merger Buyers, among any of the Debt Financing Sources with respect to their obligations to fund the Required Amount. If at any time for any reason the Buyers believe in good faith that they will not be able to obtain all or any portion of the Buyer Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letters and the Facility Documents or any other transactions contemplated by this Agreement. This Section 6.11 definitive agreements related thereto, the Buyers shall be deemed to apply deliver prompt written notice to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing Sellers. The Buyers shall keep the Sellers informed on a reasonably current basis in reasonable detail of the status of its efforts to obtain the Debt Financing and references provide to the Financing Sellers copies of all related documents. In no event shall be deemed the unavailability of any funds or financing (including, for the avoidance of doubt, the Buyer Financing) by or to refer instead to such alternative financingthe Buyers excuse the Buyers from performance of any of their respective obligations hereunder.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Mallinckrodt PLC)
Financing. (a) Parent covenants The Purchaser shall use reasonable best efforts to take, or cause to be taken, all appropriate action, do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws, and agrees with to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be reasonably required, to arrange and consummate the CompanyFinancing as soon as practicable after the date of this Agreement and, in any event, on behalf of itself and its Subsidiaries, that it shall take all action necessary or prior to ensure that as of the Closing Date, Parent on the terms and Merger Sub will have funds, subject only to the conditions contained in the aggregateEquity Financing Commitment and the Loan Financing Documentation, sufficient for including (i) maintaining (x) the payment of Equity Financing Commitment and negotiating and executing definitive agreements with respect thereto on the aggregate Cash Consideration terms and any conditions contained therein, which terms and conditions shall not expand upon the conditions to Closing or other amounts required contingencies to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stockfunding, and (y) the aggregate amount of cash to be paid pursuant to Loan Financing Documentation (the terms of Section 1.9 in respect of the Company RSU Awards, “Financing Agreements”); (ii) using reasonable best efforts to satisfy on a timely basis all conditions in the funding of any required refinancings or repayments of any existing indebtedness of Equity Financing Commitment and the Company or Parent in connection with Loan Financing Documentation that are within the Merger or Purchaser’s control to be satisfied and using reasonable best efforts to cause the financial institutions providing the Loan Financing to fund the Loan Financing, and ; (iii) fully enforcing its rights under the payment of all fees Equity Financing Commitment and expenses (iv) drawing upon and other payment obligations required consummating the Loan Financing, if available to be paid or satisfied by Parentdrawn upon and consummated. The Purchaser shall provide Sellers with a copy of the Financing Agreements as soon as practicable, Merger Sub and the Surviving Entity in connection with the Merger and the Financingbut no later than two (2) business days, after their execution.
(b) The Company Purchaser shall not agree to or permit any material amendment, supplement or other modification of, or waive any of its rights under, the Equity Financing Commitment or the Financing Agreements without the Sellers’ prior written consent, not to be unreasonably withheld, except that the Purchaser may amend, supplement or otherwise modify any of the foregoing if such amendment, supplement or other modification would not impair or delay the funding of the Loan Financing or the Closing.
(c) If any portion of the Loan Financing becomes unavailable on the terms and conditions contained in the Loan Financing Documentation, the Purchaser shall promptly notify the Sellers, and the Purchaser shall use its commercially reasonable efforts to obtain, as promptly as practicable following the occurrence of such event, commitments on terms that will enable the Purchaser to consummate the transactions contemplated by this Agreement and that are not less favorable in the aggregate (as determined by the Purchaser in its reasonable judgment) to the Purchaser than those contained in the Loan Financing Documentation. The Purchaser shall deliver to the Sellers complete and correct copies of all amendments, supplements, other modifications or agreements pursuant to which any amended, supplemented, modified or replacement commitments shall provide the Purchaser with any portion of the Financing; provided that the Purchaser may redact from any such copies the fee amounts and pricing information payable to their Financing sources.
(d) Each of the Sellers shall, and shall cause the Company and its Subsidiaries to, and shall use its commercially reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to independent accountants, legal counsel and other advisors to, provide such reasonable cooperation in connection with the Financing Sources that is reasonably available to the Company and is customary for completion arrangement of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Loan Financing as may be reasonably requested by Parent as customary the Purchaser or their Financing sources, including (i) reasonably facilitating the pledging of the Shares in connection with the Loan Financing, including any amendments of any of and (ii) using commercially reasonable efforts to obtain accountants’ “comfort letters”, accountants’ consent letters, legal opinions, and other customary documentation as reasonably requested by the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreementsPurchaser; provided that no obligation none of the Sellers nor any of the Company or its Subsidiaries their Affiliates shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) have any liability fee 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding The Purchaser shall keep the Company obtained Sellers reasonably informed on a timely basis of any material developments relating to the Financing.
(f) The Sellers understand that a significant portion of the Purchase Price will be financed with proceeds of the Loan Financing, which will be provided by Parent or its Representatives pursuant to third party sources. The Sellers accordingly acknowledge that the obligations of the Purchaser under this Section 6.11 shall be kept confidential in accordance with 6.03 do not require the Confidentiality AgreementPurchaser or any of its Affiliates to provide the Loan Financing or the Backstop Debt Financing themselves if such third party sources fail to provide the Loan Financing or the Backstop Debt Financing or to guarantee that such third party sources will provide the Loan Financing or the Backstop Debt Financing but only requires that the Purchaser use its reasonable best efforts to arrange and consummate the Loan Financing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Tops Markets Ii Corp), Purchase and Sale Agreement (Tops Markets Ii Corp)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Purchaser shall use its reasonable best efforts to cause each of its obtain the Debt Financing on or prior to the Closing Date on the terms and their respective Representativesconditions described in the Debt Commitment Letter (as the same may be amended, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent modified or replaced in accordance with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiariesthis Section 8.08), including using its reasonable best efforts to (i) provide information relating to maintain in effect the Company Debt Commitment Letter and comply with its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), obligations thereunder; (ii) participate negotiate and cause senior management to participate execute the financing documents on terms contained in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions the Debt Commitment Letter (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, any “flex” provisions related thereto); (iii) assist in satisfy on a timely basis (taking into account the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component expected timing of the Financing (including consenting Marketing Period), or obtain a waiver of, the conditions to the use Debt Commitment Letter that are within the Purchaser’s control (but excluding any condition where the failure to be so satisfied is a direct result of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended failure to or reasonably likely to harm or disparage the Company or its Subsidiaries furnish information as required under Section 7.08 or the reputation Company’s or goodwill the Seller’s breach of any of their respective other obligations under this Agreement); (iv) subject to the terms of the Company Debt Commitment Letter and upon the satisfaction of the conditions set forth in the Debt Commitment Letter, enforce its rights to consummate the Debt Financing or to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Financing at the Closing under the Debt Commitment Letter (provided, however, that in no event shall reasonable best efforts include any obligation on the part of Purchaser or any of its SubsidiariesAffiliates to commence or thereafter to commence any litigation, arbitration, action or other adjudicatory or legal proceeding against any Debt Financing Source), ; and (v) execute and deliver (upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating prior to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the FinancingClosing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use using its reasonable best efforts to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing. The Purchaser shall not permit or agree to any cash and marketable securities of the Company and its Subsidiaries termination, amendment or modification to be made available to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to Parent and/or Merger Sub be paid or original issue discount), unless the representation and warranty set forth in Section 6.08 hereof (as though made at the Closingtime of the effectuation of such termination, amendment, modification, waiver or replacement) shall remain true and correct; or (B) imposes new or additional conditions 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 (x) delay or prevent the funding of the Debt Financing (or satisfaction of the conditions to the Debt Commitment Letter that are in the Purchaser’s control) on the Closing Date or (y) adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or solely to the extent definitive loan agreements are entered into prior to the Closing Date, the definitive agreements with respect thereto; provided that (i) the Company Purchaser shall not be prohibited from using cash deemed to have violated this Section 8.08 if the Purchaser shall have (A) provided prior written notice to the Seller of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 8.08 and marketable securities (B) demonstrated (to the reasonable satisfaction of the Seller) that it has other funds available to it (on conditions not materially less favorable in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters aggregate to the Financing Sources authorizing Purchaser than the distribution of information to prospective lenders and containing a representation conditions to the Financing Sources Debt Commitment Letter) that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates, provided that the Company shall have received such documents in reasonable time are sufficient to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be pay all other amounts required to take any action in be paid by the capacity of a director of the Company or any of its Subsidiaries with respect Purchaser pursuant to the Financing (or alternative financing that Parent may raise this Agreement and in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, and (ii) be required for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of (or notice under) this provision or any other provision of this Agreement. Purchaser shall promptly deliver to pay the Seller copies of any commitment such termination, amendment, modification, waiver or other similar fee, (iii) replacement of the Debt Commitment Letter. In no event shall the Purchaser 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any breach of its Subsidiaries covenants or their respective Representatives agreements in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of 8.08 if the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective RepresentativesClosing occurs.
(db) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a If any portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding Debt Financing becomes unavailable on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Debt Commitment Letter, the Purchaser shall (i) promptly notify the Seller of such failure and the reasons therefor and (ii) use its reasonable best efforts to arrange and obtain alternative financing from the same or alternative sources in an amount sufficient, when added to the portion of the Debt Financing being replaced that is still available, to consummate the transactions contemplated hereby with terms and conditions that are not materially less favorable to the Purchaser, in the aggregate, than the terms and conditions set forth in the Debt Commitment Letter (giving effect to any applicable flex provisions), except as agreed by the Purchaser, as promptly as practicable following the occurrence of such agreements event (the “Definitive Financing AgreementsAlternative Debt Financing”). The Purchaser shall as soon as reasonably practicable deliver a true, correct and complete copy of each alternative financing commitment (collectively, a “New Debt Commitment Letter”) to the Company. Any reference in this Agreement to the “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter on the date hereof, as permitted to be amended, modified or replaced (in whole or in part) by this Section 8.08, including any Alternative Debt Financing, and references to “Debt Commitment Letter” shall include such debt commitment letters as permitted to be amended, modified or replaced (in whole or in part) by this Section 8.08, including any New Debt Commitment Letter.
(c) Prior to the Closing, the Purchaser shall keep the Company reasonably informed, upon the request of the Company, of the status of its efforts to arrange the Debt Financing and shall give the Company prompt notice: (i) of any breach of any material provisions of any of the Debt Commitment Letter or definitive document related to the Debt Financing by any party to any Debt Commitment Letter or definitive document related to the Debt Financing of which it has Knowledge, in each case to the extent such breach could reasonably be expected to delay or prevent the Closing, and (ii) of the receipt of any written notice or other written communication from any Debt Financing Source with respect to any (A) actual or potential breach, default, termination or repudiation by any party to any Debt Commitment Letter or any definitive document related to the Debt Financing or any provisions of the Debt Commitment Letter or (B) adversely impact the ability of Parent to enforce its rights against other dispute or disagreement between or among any parties to the any Debt Commitment Letter with respect to the obligation to fund the Debt Financing or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation amount of the Merger and Debt Financing to be funded at the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingClosing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each of its to be taken, all actions, and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with proper or advisable to consummate the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing contemplated by the Financing Sources Commitment Letter (including audited consolidated financial statements of the Company covering the three (3or any Substitute Financing) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period on or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding Date, including (i) complying with its obligations under the business, operations and financial projections of the Company)Commitment Letter, (ii) participate negotiating and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit entering into definitive agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with on the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related terms and subject to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and 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 connection with any Substitute Financing, the “Definitive Financing Agreements”), (Biii) adversely impact satisfying (or, if deemed advisable by Parent, pursuing a waiver of) on a timely basis all the ability conditions to the Financing 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) Parent shall give the Company prompt written notice (i) of, to enforce its rights against other the Knowledge of Parent, 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 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 the Definitive any Financing Agreements, (iv) of, to the Knowledge of Parent, any material amendment or modification of, or waiver under, the Commitment Letter or (Cv) prevent, impede if for any reason Parent believes in good faith that it will not be able to timely obtain all or delay the consummation any portion of the Merger and Financing on the other transactions terms, in the manner or from the sources contemplated by the Commitment Letter or any Financing Agreements. Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to 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 any portion of the Financing 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. This Section 6.11 , as applicable, as so amended or modified; provided, that in the event the commitments under the Commitment Letter are reduced as a result of or in connection with any Replacement Financing, the term “Financing” shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or include such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingReplacement Financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Parker Hannifin Corp), Merger Agreement (Clarcor Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its their respective reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to consummate and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing (provided that such requested cooperation does not unreasonably interfere with on the ongoing operations of terms and conditions described in the Company and its Subsidiaries)Financing Commitments, including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to maintain in effect the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Commitments, (ii) participate negotiate definitive agreements with respect to the Debt Financing on terms and cause senior management conditions (including, as necessary, the “flex” provisions contained in the redacted fee letter accompanying the Debt Financing Letter) as specified in the Debt Financing Letter (any such agreements, the “Definitive Debt Agreements”), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions that are applicable to participate Parent or Merger Sub in a reasonable number the Debt Financing Commitment or the Definitive Debt Agreements, as applicable, and comply with its obligations thereunder, and (iv) upon the satisfaction or waiver of meetings with such conditions, consummate the Debt Financing Sources at or prior to the Effective Time. In furtherance and other presentationsnot in limitation of the foregoing, road showsin the event that all conditions to the Debt Financing Letter (and if Definitive Debt Agreements have been entered into, drafting sessions, due diligence sessions (including accounting due diligence sessionsto such respective Definitive Debt Agreements) and sessions with the rating agencies, in each case, other than the availability of any of the financing contemplated under the Equity Financing Letter, have been satisfied or waived or upon the funding will be satisfied, and all of the conditions set forth in Section 8.1 (with respect to any funding of Debt Financing to occur at the Closing) have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the closing of the Debt Financing, the Offer Closing or the Closing, as applicable), Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under the Debt Financing Letter and Definitive Debt Agreements, as the case may be, including by suit or other appropriate proceeding.
(b) Parent shall have the right from time to time to amend, modify or replace the Financing Commitments; provided, that Parent shall not, without the prior written consent of the Company, agree to, or permit, any amendment, modification or replacement of, or waiver under, the Financing Commitments or the definitive agreements relating to the completion of the Financing by the Financing SourcesCommitments if such amendment, (iii) assist in the preparation of modification, replacement or waiver would (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for reduce the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component aggregate amount of the Financing (including consenting to unless 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 Debt Financing or the reputation or goodwill of the Company or any of its SubsidiariesEquity Financing is increased by a corresponding amount), (vB) execute and deliver (impose new or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (additional conditions or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency expand or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of amend any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter that would reasonably be expected to (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C1) prevent, impede or delay the consummation of the Merger and Financing, the Offer Closing or the Closing, (2) make the funding of the Financing less likely to occur, or (3) adversely impact the ability of the Parent to enforce its rights against the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references parties to the Financing Commitments or the definitive documents with respect thereto, or (C) reasonably be expected to (1) prevent, impede or delay the consummation of the Financing, the Offer Closing or the Closing, (2) make the funding of the Financing less likely to occur, or (3) adversely impact the ability of the Parent to enforce its rights against the other parties to the Financing Commitments or the definitive documents with respect thereto, without the prior consent of the Company; provided, further, that notwithstanding the foregoing, Parent may amend the Debt Financing Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Letter as of the date of this Agreement if the addition of such parties individually or in the aggregate would not reasonably be expected to delay or prevent the consummation of the Debt Financing or the Offer Closing. Parent shall be deemed deliver to refer instead the Company copies of any such amendment, modification, replacement or waiver promptly upon its execution thereof. If, notwithstanding the use of reasonable best efforts by Buyer to such alternative financing.
(e) All non-public satisfy its obligations under this Section 7.15(a), any portion of the Debt Financing or Definitive Debt Documents is terminated or expires or otherwise confidential information regarding becomes unavailable on the terms and conditions (including the “flex” provisions contained in the redacted fee letter accompanying the Debt Financing Letter) specified in the Debt Financing Letter or the Definitive Debt Agreements, Parent shall promptly notify the Company obtained by Parent or and shall use its Representatives pursuant reasonable best efforts to this Section 6.11 shall be kept confidential in accordance with arrange and obtain alternative financing from the Confidentiality Agreement.same and/or alternative sources on terms and conditions not less favorable, taken as a whole, to Parent, than
Appears in 2 contracts
Samples: Merger Agreement (Michael Baker Corp), Merger Agreement (Michael Baker Corp)
Financing. (a) Parent covenants Notwithstanding anything to the contrary contained in this Agreement, it is expressly understood and agrees with agreed by the Company, on behalf of itself and Parties that (x) the Debt Financing Commitment by its Subsidiaries, that it shall take all action necessary to ensure that as terms contemplates reductions of the Closing Datecommitments thereunder or the termination thereof pursuant to the provisions entitled “Mandatory Commitment Reductions and Prepayments” in Annex B to the Debt Financing Commitment and (y) that Acquiror shall have the right to terminate or reduce any and all commitments under the Debt Financing Commitment pursuant to the provisions entitled “Optional Commitment Reductions and Prepayments” in Annex B to the Debt Financing Commitment, Parent and Merger Sub will have fundsso long as, in the aggregatecase of any termination or reduction pursuant to such provisions, sufficient for (i) the payment Acquiror provides Verizon with reasonable advance written notice of the aggregate Cash Consideration and any other amounts required its intent to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awardsterminate or reduce such commitments, (ii) after giving effect to such termination or reduction Acquiror shall maintain available cash, committed financing (including under any portion of Debt Financing Commitment) and available capacity under its existing revolving credit facilities sufficient in the funding of any required refinancings or repayments of any existing indebtedness aggregate to enable Acquiror and the Tower Operator to consummate the transactions contemplated hereby, including payment of the Company or Parent in connection with Consideration and fees and expenses of Acquiror relating to the Merger or the Financing, transactions contemplated hereby and (iii) prior to such termination or reduction, Acquiror supplies written documentation reasonably satisfactory to the payment of all fees Verizon Parties evidencing such available cash, committed financing and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financingavailable capacity.
(b) The Company shall, shall cause its Subsidiaries to, Acquiror and shall use its reasonable best efforts to cause each of its the Tower Operator acknowledge and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with agree that the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations receipt of the Company and its Subsidiaries), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Debt Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 a condition 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and Initial Closing or the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed Agreement and the Collateral Agreements, and that, except as otherwise expressly provided herein, the failure to apply to obtain the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Debt Financing shall be deemed not in any way relieve Acquiror and the Tower Operator of their obligations to refer instead to such alternative financingconsummate the Initial Closing or the other transactions contemplated by this Agreement and the Collateral Agreements.
(ec) All non-public Subject to any termination or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential reduction in accordance with Section 9.11(a) and to the Confidentiality Agreementextent some or all of the proceeds of the “Bank Financing”, “Equity Offering” or the “Notes Offering” described in Annex B to the Debt Financing Commitment are not available, Acquiror shall use commercially reasonable efforts to borrow under the “Facility” described in such Annex B as required to consummate the transactions contemplated hereby, including payment of the Consideration and fees and expenses of Acquiror relating to the transactions contemplated hereby, on or prior to the Initial Closing Date on the terms and conditions set forth in the Debt Financing Commitment including (i) maintaining in effect and using commercially reasonable efforts to enforce the Debt Financing Commitment, including, subject to satisfaction of the conditions thereunder, using commercially reasonable efforts in good faith, to seek specific performance of the funding obligations of the parties thereunder, and complying with its obligations thereunder, (ii) satisfying on a timely basis all conditions to the Debt Financing set forth in the Debt Financing Commitment that are within Acquiror’s control and (iii) drawing the full amount of the Debt Financing then available, in the event that the conditions set forth in Section 10.1 and Section 10.2 have been satisfied (or otherwise waived with, to the extent required, the consent of the Debt Financing Sources).
Appears in 2 contracts
Samples: Master Agreement, Master Agreement (American Tower Corp /Ma/)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as Until Discharge of the Closing DateFirst Lien Obligations has occurred, Parent if any Obligor shall be subject to any Insolvency Proceeding and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting First Lien Creditors consent to the use of the Company’s and its Subsidiaries’ logos; provided that cash collateral (as such logos are used solely term is defined 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 Section 363(a) of the Company Bankruptcy Code; herein, “Cash Collateral”) on which any First Lien Creditor has a Lien or any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities Obligor to obtain financing provided by any First Lien Creditor under Section 364 of the Company Bankruptcy Code or any similar Bankruptcy Law (such financing, together with any Cash Collateral use, collectively a “DIP Financing”), then each Second Lien Creditor agrees that it will consent to such Cash Collateral use and its Subsidiaries raise no objection to be made available to Parent and/or Merger Sub at such DIP Financing, provided, the Closing, provided that the Company shall not be prohibited from using cash and marketable securities Second Lien Creditors retain a subordinate security interest in the ordinary course or from taking any action not prohibited by Section 5.1, collateral (viiiincluding proceeds thereof) provide customary authorization letters and obtains a replacement security interest on post-petition Collateral to the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation same extent as existed prior to the Financing Sources that commencement of the public side versions of such documentsInsolvency Proceeding, if any, do not include material non-public information about the Company or its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligenceand, to the extent customary and reasonable and the Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing, each Second Lien Creditor will subordinate its Liens in the Collateral to the extent not unreasonably interfering Liens securing such DIP Financing. If any First Lien Creditor offers to provide DIP Financing that meets the requirements set forth above, each Second Lien Creditor agrees that it shall not, directly or indirectly, (x) provide or offer to provide DIP Financing or support any DIP Financing secured by a Lien senior to or pari passu with the business Liens securing the First Lien Obligations, or (y) request or accept any form of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document adequate protection or any other agreement relief except as provided in Section 9(e)(ii). In connection with any DIP Financing, if any Liens on the Collateral held by First Lien Creditors are subject to a surcharge or document related are subordinated to an administrative priority claim, a professional fee “carve out,” or fees owed to the Financing (United States Trustee, then the Liens on the Collateral of each Second Lien Creditor shall also be subordinated to such interest or alternative financing that Parent may raise in connection claim and shall remain subordinated to the Liens on the Collateral of First Lien Creditors consistent with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Intercreditor Agreement (RS Properties I LLC), Intercreditor Agreement (Perlman Richard E)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) Each of Parent and Sub shall 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 consummate and obtain the payment Debt Financing on or prior to the Closing Date on the terms and subject only to the conditions contained in the Debt Financing Commitment (or with other terms and conditions agreed by Parent and the Financing Sources, subject to the restrictions on amendments of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article IIDebt Financing Commitment set forth below), the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use including using its reasonable best efforts to cause each of its (A) negotiate and their respective Representatives, including legal, tax, regulatory enter into definitive agreements with respect to the Debt Financing on the terms and accounting, to, provide all cooperation reasonably requested subject only to the conditions contained in the Debt Financing Commitment (or with other terms and conditions agreed by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in subject to the preparation restrictions on amendments of (A) any customary offering documentsthe Debt Financing Commitment set forth below), bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver satisfy (or use reasonable best efforts to obtain from its advisorsthe waiver of), and cause its Subsidiaries Affiliates to execute and deliver satisfy (or obtain the waiver of), on a timely basis all conditions, and comply with all obligations applicable to Parent or Sub, contained in the Debt Financing Commitment or the definitive agreements related to the Debt Financing Commitment that are within the control of the Parent or Sub or any of its or their Affiliates or (C) maintain in effect the Debt Financing Commitment. If all conditions to the Debt Financing have been satisfied and the conditions to Parent’s and Sub’s obligation to consummate the Merger have been satisfied or (to the extent permitted by Law) waived, each of Parent and Sub shall use their reasonable best efforts to obtain from its advisors), credit agreements cause the financial institutions providing the Debt Financing to fund the Debt Financing on the Closing Date. For the avoidance of doubt and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating notwithstanding anything to the Financing)contrary in this Section 5.08, or other documents Parent acknowledges and instruments ancillary agrees that its obligations to consummate the Transactions on the terms and subject to the Financing conditions set forth herein is not conditioned upon the availability or consummation of the Debt Financing, the availability of any replacement commitments or receipt of the proceeds therefrom, and its obligations under this Agreement include its obligation to take such actions as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, necessary to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts at Closing the cash resources to permit any cash and marketable securities of consummate the Company and its Subsidiaries to be made available to Parent and/or Merger Sub Transactions at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Covance Inc), Merger Agreement (Laboratory Corp of America Holdings)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and HoldCo shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesdo, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to arrange, obtain and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice consummate the Debt Financing on the terms and conditions set forth in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with Commitment Letter as promptly as practicable after the ongoing operations of the Company and its Subsidiaries)date hereof, including using its reasonable best efforts to (i) provide information relating to maintain in effect the Company Commitment Letter until the Mergers and its Subsidiaries to the Financing Sources other transactions contemplated by this Agreement are consummated (it being acknowledged that is reasonably available to the Company and is customary for completion 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 Financing Debt Financing, together with cash, cash equivalents and short-term marketable securities held by the Financing Sources (including audited consolidated financial statements Parent Entities, as of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the First Effective Time, (vi) use its reasonable best efforts, as appropriate, will be sufficient to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts enable Parent and/or HoldCo to permit any cash and marketable securities of the Company and its Subsidiaries pay all amounts required to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using paid by them in cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise 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)) if such Representative believes such action would be inconsistent with their fiduciary duties, 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 its obligations thereunder and (z) upon the satisfaction or waiver of such conditions, consummate the Debt Financing. Parent and HoldCo shall take any and all actions 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) Notwithstanding the foregoing, Parent and/or HoldCo may, in its sole discretion and at any time, replace all or any portion of the Debt Financing 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 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 pay 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 commitment provision of the Commitment Letter in a manner that in any such case would reasonably be expected to (1) materially delay or other similar feemake materially less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, (iii2) have any liability materially adversely impact the ability of Parent or any obligation under any credit agreement or any related document HoldCo to enforce its rights against the Financing Sources or any other agreement parties to the Commitment Letter or document (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 Letter without the prior written approval of the Company if such amendment, 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 alternative financing that Parent may raise 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) 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 (iv) be required HoldCo shall use its reasonable best efforts to incur any other liability in connection with the Financing (or any arrange and obtain, as promptly as reasonably practicable, alternative financing that from alternative sources on terms and conditions not materially less favorable, taken as a whole, to Parent may raise or HoldCo than those contained in connection the Commitment 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 transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation aggregate principal amount of the Company and its Subsidiaries contemplated by this Section 6.11Debt Financing or such unavailable portion thereof, as the case may be (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement“Alternate Financing”), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as obtain a result of obtaining alternative financing, or if Parent substitutes other debt or equity new financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and commitment letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not Alternate Financing (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.New
Appears in 1 contract
Samples: Merger Agreement (Avon Products Inc)
Financing. (a) Each of Parent covenants and agrees Merger Sub shall use its commercially reasonable best efforts to complete the transactions contemplated by the Debt Commitment Letters in accordance with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as terms of the Closing DateDebt Commitment Letters (including obtaining rating agency approvals, maintaining in effect the Commitments, satisfying on a timely basis all conditions applicable to SBEV, Parent and Merger Sub will have funds, in to obtaining the aggregate, sufficient for financing contemplated by the Commitments (i) including by consummating the payment of financing contemplated by the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its SubsidiariesEquity Commitment Letter(s)), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the negotiating definitive agreements with respect thereto on terms and conditions contemplated by contained therein, satisfying all conditions applicable to SBEV, Parent and Merger Sub in such definitive agreements that are within its control and, if necessary, borrowing pursuant to the Debt Commitment Letter (any such agreements Letters in the event the “Definitive Financing Agreements”flex” provisions are exercised), (B) adversely impact with such changes as Parent may desire, in order to have available to it the ability of Parent to enforce its rights against Merger Consideration and other parties transaction costs at or prior to the Commitment Letter or Closing; provided, however, that in no event will Parent make any changes that would be reasonably expected to have a material adverse effect on the Definitive Financing Agreements, or (C) prevent, impede or delay solvency of the Company upon the consummation of the Merger Merger; provided, further, that, except as expressly provided in the following sentence, such changes must be approved in writing by the Company (such approval not to be unreasonably withheld). Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to comply with the terms of, and satisfy the conditions contemplated by, the financing contemplated by the Commitments in accordance with this Section 6.14 and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Commitments without obtaining the prior written consent of the Company (such consent not to be unreasonably withheld, provided the consent of the Company shall not be required in the event that any such amendment or modification of the Debt Commitment Letters (A) does not have and could not reasonably be expected to have any adverse effect on the “bring down” of the Solvency Opinion or Parent’s ability to deliver such “bring down” to the Company and the other transactions Company Board as required by Section 6.13 hereof, and (B) involves solely one or more of the following: (1) a change in the participant Institutional Lenders, provided that any such substituted participant shall be a bank or private lender with assets exceeding $1 billion; (2) the removal or limitation of contingencies or conditions to the obligations of the Institutional Lenders thereunder; (3) the shifting between or among Institutional Lenders of their respective lending obligations to Parent and its affiliates participating directly or indirectly in the contribution of Merger Consideration; and (4) increases in the overall indebtedness by no more than $100,000,000 in the aggregate. Parent shall give the Company prompt notice of any material breach by any party of the Commitments or any termination of any of the Commitments. Parent and Merger Sub shall use their respective commercially reasonable best efforts to cause the updated Debt Commitment Letters referred to in Section 6.2.1 hereof to be delivered as promptly as is reasonably practicable. For the avoidance of doubt, if the financing provided for by the Commitments has not been or cannot be obtained, Parent and Merger Sub shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement. This Section 6.11 shall be deemed to apply Agreement and subject only to the Commitment Letter as so amendedsatisfaction or waiver of the conditions set forth in Sections 7.1 and 7.2 of this Agreement and to Parent’s rights under Section 8.1, replaced, supplemented or otherwise modified and/or such regardless of whether Parent and Merger Sub have complied with all of their other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
obligations under this Agreement (e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to including their obligations under this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement6.14).
Appears in 1 contract
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing DateGuarantor, Parent and Merger Sub will have funds, in the aggregate, sufficient for shall (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries their respective Affiliates to, and shall ) use its reasonable best efforts to take, or cause each to be taken, all actions and to do, or cause to be done, as promptly as reasonably practicable until the earlier to occur of its (x) the Closing Date and (y) the valid termination of this Agreement, all things necessary, proper or advisable and reasonably within their respective Representatives, including legal, tax, regulatory control to consummate and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing (provided that such requested cooperation does not unreasonably interfere with on the ongoing operations of terms and subject only to the Company and its Subsidiaries)conditions set forth in the Financing Commitments, including using reasonable best efforts to to: (i) provide information relating to maintain in effect and comply with the Company and its Subsidiaries to obligations under the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Commitments, (ii) participate promptly negotiate and cause senior management to participate in a reasonable number of meetings enter into definitive documents with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating respect to the completion Financing on the terms and subject only to the conditions set forth in the Financing Commitments (or on terms and subject to conditions, including any terms and conditions that could affect the conditionality, enforceability, availability, termination or aggregate amount of the Financing by Debt Financing, not materially less favorable to Guarantor, Parent and Merger Sub than the terms and conditions set forth in the Financing SourcesCommitments taken as a whole), (iii) assist satisfy on a timely basis all conditions applicable to Guarantor, Parent, Merger Sub and their respective Affiliates in the preparation Financing Commitments and the definitive documents relating to the Financing (including delivering all financial statements of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for Guarantor to the Financing, and (B) materials for rating agency presentationsextent required by the Financing Commitments), (iv) cooperate consummate the Financing at or prior to the Closing, including using reasonable best efforts (which shall include taking all actions reasonably within its control) to cause the Debt Financing Sources 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 Commitments and the definitive documents relating to the Financing and (vi) comply with its covenants and other obligations under the marketing efforts for Financing Commitments and the definitive documents relating to the Financing. Each of Guarantor, Parent and Merger Sub shall not (and shall cause their respective Affiliates not to), without the prior written consent of Company, agree to or permit any component termination of or amendment or modification to be made to, or grant any waiver of any provision under, the Financing Commitments or the definitive documents 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 consenting by increasing the amount of fees to be paid or original issue discount) to an amount less than the amount required by Parent and Merger Sub to consummate the Merger Transactions at the Closing, (B)(1) impose new or additional conditions precedent to the use availability of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely Financing or (2) otherwise expand, amend or modify any of the conditions to the Financing, or otherwise expand, amend or modify any other provision of the Financing Commitments or the definitive documents relating to the Financing, in each case in a manner that is not intended would reasonably be expected to delay or reasonably prevent or make less likely to harm occur the funding of the Financing (or disparage satisfaction of the Company conditions to the Financing) on the Closing Date, (C) shorten the expiration date of the Financing Commitments or its Subsidiaries (D) adversely affect the ability of Guarantor, Parent or Merger Sub to enforce their rights and remedies against any other party to any Financing Commitment or the reputation or goodwill of definitive documents with respect to the Financing; provided that, notwithstanding anything to the contrary herein, no consent from Company or any other party hereto shall be required for (I) any amendment, restatement, amendment and restatement, replacement, supplement or other modification of, or waiver or consent under, the Debt Financing Commitments that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters the date of this Agreement (including consents replacement of accountants for use a Debt Financing Source thereunder) or (II) implementation or exercise of their reports in any materials economic “flex” provision contemplated by the Debt Financing Commitments. Parent shall promptly deliver to Company copies of any amendment, modification or waiver to or under any Financing Commitment or the definitive documents relating to the Financing). Parent or its applicable Affiliate will fully pay, or cause to be paid, all commitment and other fees under or arising pursuant to the Debt Financing Commitments as and when they become due.
(b) (i) Parent shall keep Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and shall provide to Company copies (including drafts) of the material definitive documents and instruments ancillary for the Debt Financing as soon as practicable. Parent shall promptly notify Company (A) of any actual or threatened in writing material breach, default, termination or repudiation by any party to any Financing Commitment or definitive documents related to the Financing as may be reasonably requested by of which Guarantor, Parent as customary in connection with or Merger Sub becomes aware, (B) of the Financing, including any amendments receipt of any of the Company’s written notice or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of other written communication from any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries Source with respect to the any actual or threatened in writing material breach, default, termination or repudiation by any party to any Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) have any liability Commitment or any obligation under any credit agreement or any related document or any other agreement or definitive document related to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur of any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement provisions of the Financing and Commitments or any information utilized in connection therewith (other than historical information relating definitive document related to the Company Financing and (C) if and when Guarantor, Parent or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event Merger Sub becomes aware that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the FinancingFinancing contemplated by the Financing Commitments may not be available in the amounts necessary to meet the obligations of Parent or Merger Sub, as applicable, as provided in this Agreement, on the Company shall comply with its covenants terms and conditions, in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented manner or otherwise modified and with respect to such other debt from the sources contemplated by the Financing Commitments or equity financing to the same extent that the Company would have been obligated to comply with respect definitive documents related to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing . Parent shall not (A) add new (or modify, in a manner adverse promptly provide any information reasonably requested by Company relating to Parent, any existing) conditions precedent or contingencies circumstance referred to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter immediately preceding sentence (any such agreements the “Definitive Financing Agreements”if applicable), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 1 contract
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Buyer shall use its reasonable best efforts to take, or cause each to be taken, and, to the extent applicable, shall cause its Subsidiaries 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 to consummate and obtain the Debt Financing at the Closing on the terms and subject to the conditions set forth in the Debt Commitment Letter (including giving effect to the market flex provisions of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice any related fee letter in connection accordance with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiariesterms thereof), including using reasonable best efforts to (i) provide information relating maintain in effect the Debt Commitment Letter (until the termination thereof in accordance with its terms) and negotiate and enter into definitive agreements with respect thereto (the “Definitive Financing Agreements”) on the terms and subject to the Company and its Subsidiaries conditions contemplated by the Debt Commitment Letter (including giving effect to the Financing Sources that is reasonably available to market flex provisions of any related fee letter in accordance with the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessionsterms thereof) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing except as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries otherwise expressly permitted to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amendedrestated, replaced, supplemented or otherwise modified and or waived in accordance with respect to such other debt or equity financing this Section 6.14(a) and, promptly after execution thereof, deliver to the same extent that the Company would have been obligated to comply with respect a copy of any Definitive Financing Agreements to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies extent effective prior to the funding on the Closing Date of the Financing Debt Financing; (ii) satisfy on a timely basis all conditions applicable to Buyer in order for Buyer to obtain the Debt Financing, as applicable, set forth in the Debt Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, ; (iii) fully enforce the respective counterparties’ obligations and Buyer’s rights under the Debt Commitment Letter; and (iv) upon satisfaction or waiver of all conditions in the Debt Commitment Letter (Cand the Definitive Financing Agreements) prevent, impede and satisfaction or delay the consummation waiver of the Merger conditions set forth in Sections 7.01 and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply 7.02 to the obligations of Buyer, consummate the Debt Financing at the Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions described in the Debt Commitment Letter as so amended(and such portion, replacedwhen taken together with Other Available Funds, supplemented or otherwise modified and/or such other debt or equity financing and references is necessary for Buyer to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or satisfy its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.payment obligations hereunder
Appears in 1 contract
Samples: Stock Purchase Agreement (Huntington Ingalls Industries, Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it Buyer shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stockuse, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries toaffiliates to use, and shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable (i) to consummate and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice obtain the Equity Financing on the terms and conditions set forth in connection with the Equity Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries)Commitment, including using reasonable best efforts to (i) provide information relating maintain in effect the Equity Financing Commitment in accordance with the terms and subject to the Company conditions thereof, and its Subsidiaries seeking the enforcement thereof of any rights under the Equity Financing Commitment in the event of a breach thereof by Sponsor thereunder and delivering any notices or other demands required to cause the Equity Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period be funded at or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Closing, (ii) participate to satisfy all conditions and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sourcescovenants contained therein, (iii) assist to negotiate and enter into all definitive agreements with respect to the Equity Financing on the terms and conditions contained in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentationsEquity Financing Commitment, (iv) cooperate with to satisfy all conditions to such definitive agreements that are applicable to Buyer and consummate the marketing efforts for any component of the Equity Financing (including consenting at or prior to the use of the Company’s Closing, 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), (v) execute and deliver (cause the Sponsor to fund the Equity Financing required to be funded at Closing in accordance with the terms of the Equity Financing Commitment. Buyer shall not agree to or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (permit any amendment or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing)modification, or other documents and instruments ancillary consent to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including or grant any amendments waiver of any provision or remedy under, the Equity Financing Commitment, without the prior written consent of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its SubsidiariesSeller.
(cb) Notwithstanding Without limiting the foregoinggenerality of Section 5.05(a), until the Effective Time occurs, neither the Company, any Buyer shall give Seller prompt notice of its Subsidiaries, nor their respective Representatives, shall (i) be required to take Buyer becoming aware of any action in the capacity of a director of the Company or material breach by any of its Subsidiaries with respect party to the Equity Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary dutiesCommitment, (ii) be required to pay the receipt of any commitment written notice or other similar feewritten communication from the Sponsor with respect to any termination or repudiation by any party to the Equity Financing Commitment, (iii) have Buyer becoming aware of any liability material dispute or disagreement between or among any parties to Equity Financing Commitment or any obligation under any credit agreement or any related document or any other agreement or document definitive documents related to the Equity Financing (or alternative financing that Parent may raise would reasonably result in connection with a breach under the transactions contemplated by this Agreement) or Equity Financing Commitment (iv) if for any reason Buyer believes in good faith that it will not be required able to incur any other liability in connection with the Financing (obtain all or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, Equity Financing on substantially the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Equity Financing Commitment Letter and (v) any such agreements amendment modification or replacement of the “Definitive Equity Financing Agreements”Commitment together with copies thereof. Buyer shall provide any additional information reasonably requested in writing by Seller relating to the circumstances in clauses (b)(i) through (v), as soon as reasonably practical, but no later than five (B5) adversely impact days after receipt of such written request.
(c) Buyer acknowledges and agrees that the ability obtaining of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing AgreementsEquity Financing, or (C) preventany alternative financing, impede or delay is not a condition to Closing and reaffirms its obligation to consummate the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to Agreement irrespective and independently of the Commitment Letter as so amended, replaced, supplemented availability of the Equity Financing or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such any alternative financing, subject to fulfillment or waiver of the conditions set forth in Article VI.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 1 contract
Financing. (a) Parent covenants shall, and agrees shall cause the Parent Subsidiaries 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 arrange and consummate the Financing or any Substitute Financing in an amount sufficient, together with cash on hand that replaces or supplements the Financing consistent with the Companyterms set forth in this Section 7.11, on behalf of itself to consummate the Merger and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for other transactions contemplated hereby (i) including the payment of the aggregate Cash Consideration and Consideration, any other amounts required to be paid pursuant to Article III, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect any Indebtedness of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of including the Company or Parent in connection with the Merger or the Financing, and (iiiCredit Agreement) the payment of all fees and expenses and other payment obligations required to be paid repaid, redeemed, retired, cancelled, terminated or otherwise satisfied by Parent, Merger Sub and the Surviving Entity or discharged in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries toany premiums and fees incurred in connection therewith, and shall use its reasonable best efforts any other fees and expenses reasonably expected to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice be incurred in connection with this Agreement, the Financing (provided that such requested cooperation does not unreasonably interfere with Merger and the ongoing operations of other transactions contemplated hereby) no later than the Company and its Subsidiaries)Closing, including including, using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documentsmaintain in effect the Commitment Letter and comply in all material respects with all of their respective obligations thereunder, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentationsnegotiate, (iv) cooperate with the marketing efforts for any component of 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), (v) execute enter into and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit definitive agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (the “Financing Agreements”) reflecting the terms contained in the Commitment Letter (or, to the extent not included in the Commitment Letter, with other terms agreed by Parent and the Financing Parties, provided that, any changes to terms contained in the Commitment Letter shall be subject to the restrictions on amendments of the Commitment Letter set forth below), so that such agreements are in effect through the Closing and (C) enforce their rights under the Commitment Letter and (ii) satisfy on a timely basis all the conditions to the Financing and the Financing Agreements related thereto that are in Parent’s (or alternative financing the Parent Subsidiaries’) control. In the event that all conditions set forth in Section 8.01 and Section 8.02 have been satisfied or waived or, upon funding of the Financing, shall have been satisfied or waived, Parent may raise shall, and shall cause the Parent Subsidiaries to, use reasonable best efforts to cause the Persons providing the Financing to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby (including the payment of the Cash Consideration, any other amounts required to be paid pursuant to Article I, any Indebtedness of the Company (including the Company Credit Agreement) required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and any premiums and fees incurred in connection therewith, and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby). Parent and/or Intermediate 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. Each of Parent and Intermediate Holdco acknowledges and agrees that the obtaining of the Financing is not a condition to the Closing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing, subject to the applicable conditions set forth in Sections 8.01 and 8.02.
(b) Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s and the Parent Subsidiaries’ efforts to obtain the Financing and to satisfy the conditions thereof, including promptly providing copies of any amendment, modification or replacement of the Commitment Letter (provided, that any fee letter may be redacted to remove the fee amounts, the rates and amounts included in the “market flex” and other economic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Financing) and shall give the Company prompt written notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary for the satisfaction of all of Parent’s and the Parent Subsidiaries’ obligations under this Agreement, including the payment of the Cash Consideration, any other amounts required to be paid pursuant to Article I, any Indebtedness of the Company (including the Company Credit Agreement) if required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and any premiums and fees incurred in connection therewith, and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby, including, promptly after obtaining Knowledge thereof, providing the Company written notice of any (A) breach or default by a Financing Party, or any party to any definitive document related to the Financing, of the Commitment Letter or any definitive document related to the Financing, (B) actual or threatened withdrawal, repudiation or termination in writing of the Commitment Letter by the Financing Parties or (C) material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing, on the one hand, and Parent or Intermediate Holdco, on the other hand, in each case with respect to the obligations to fund the Financing or the amount of the Financing to be funded at Closing; provided, that neither Parent nor any of its Affiliates shall be under any obligation to disclose any information that is subject to attorney-client or similar privilege to the extent such Representative believes privilege is asserted in good faith or otherwise would violate or contravene any Law or any obligation of confidentiality so long as Parent or its Affiliates shall have used commercially reasonable efforts to disclose such action information in a way that would not waive such privilege or violate such Law or obligation of confidentiality. Parent and Intermediate Holdco may not amend, modify, replace, terminate, assign or agree to any waiver under the Commitment Letter without the prior written approval of the Company, to the extent such amendment, replacement, modification, assignment, termination or waiver to be inconsistent made to, or consent to any waiver of, any provision of or remedy under the Commitment Letter would (i) reduce the aggregate cash amounts of the Financing (including by increasing the amount of fees to be paid or the original issue discount) unless the aggregate amount of the Financing following such reduction, together with their fiduciary dutiescash on hand and other financial resources of Parent on the Closing Date, is sufficient to consummate the Merger and the other transactions contemplated hereby, including the payment of the Cash Consideration, any other amounts required to be paid pursuant to Article I, any Indebtedness of the Company (including the Company Credit Agreement) required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and any premiums and fees incurred in connection therewith, and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby (it being understood that any such reduction in such amounts in accordance with the terms of the Commitment Letter shall be permitted), (ii) be required impose new or additional conditions to pay the Financing or otherwise expand, amend, modify or waive any commitment of the conditions to the Financing or other similar fee, (iii) have otherwise expand, amend, modify or waive any liability provision of the Commitment Letter, in a manner that in any such case would reasonably be expected to (A) materially delay or any obligation under any credit agreement or any related document or any other agreement or document related to make less likely the funding of the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation satisfaction of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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 conditions to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”)Date, (B) materially adversely impact the ability of Parent or Intermediate Holdco to enforce its rights against the Financing Parties, any other parties to the Commitment Letter or the Definitive Financing Agreements, Agreements or (C) prevent, impede materially adversely affect the ability of Parent or delay any of the consummation of Parent Subsidiaries to timely consummate the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed hereby; provided, that notwithstanding the foregoing, Parent and Intermediate Holdco may modify, supplement or amend the Commitment Letter to apply to (1) add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as so amendedof the date of this Agreement and (2) implement or exercise any “market flex” provisions contained in the Commitment Letter. In the event that new commitment letters and/or fee letters are entered into in accordance with any amendment, replacedreplacement, supplemented supplement or otherwise modified and/or such other debt or equity financing and references to modification of the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives Commitment Letter permitted pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.7.11, such new
Appears in 1 contract
Samples: Merger Agreement (Gannett Co., Inc.)
Financing. (ai) Parent The Buyer shall use its best efforts to complete a private placement or private placements (the "Closing Placements," whether one or more) of securities of Buyer (which may include Buyer Common Stock, preferred stock and secured, convertible and subordinated debt securities in such proportions and with such anticipated debt covenants as Sellers shall approve, with such approval not to be unreasonably withheld) ("Buyer Securities") that will provide to the Buyer available funds immediately prior to the Closing Date in an amount (up to a maximum amount of $87,000,000 but not less than $77,000,000, herein called the "Financing Amount") that is sufficient to (A) consummate all of the transactions to be completed by the Buyer contemplated by this Agreement and agrees (B) for its working capital purposes. Purchasers of Buyer Securities in the Closing Placements may, in Buyer's discretion be granted customary registration rights with respect to Buyer Securities under the Securities Act and applicable state securities or "Blue Sky" laws. The Closing Placements and offer and sale of Buyer Securities shall be conducted and made in compliance with the CompanySecurities Act, on behalf the Exchange Act, and all applicable state securities or "Blue Sky" laws, and all applicable federal and state regulations, and, if applicable, the laws or regulations of itself any foreign jurisdiction; and its Subsidiarieseach such offer and sale shall qualify for a valid exemption from registration or qualification under such laws and regulations, including any rules, regulations or interpretations requiring offers and sales of securities otherwise exempt from registration to be "integrated" as one offering and thereby require registration or qualification thereunder. All disclosure statements and other offering materials provided to prospective purchasers of Buyer Securities in the Closing Placements shall be provided to Sellers or Sellers' Representative at such time reasonably prior to use or dissemination thereof in order to permit review of such documents by Sellers and their representatives. Likewise, the qualification of each prospective purchaser as an accredited investor to whom Buyer Securities may be sold in the Closing Placements shall be subject to Sellers' prior approval (such approval not to be unreasonably withheld). Incident to the Closing Placements, Sellers (other than PennTex Illinois or Rxx Energy) or their designees shall purchase or cause to be purchased and Buyer shall sell and issue to Sellers or their designees ten percent (10%) of the Buyer Securities sold in the Closing Placements (inclusive of the Buyer Securities purchased by Sellers and including 10% of each different type or class of Buyer Securities included in and sold pursuant to the Closing Placements, if applicable) as provided for in the Stock Agreement. In the event that it shall take all action necessary Sellers' withhold their consent to ensure that as the structure of the Closing DatePlacements or other matters described in this Section 5(k)(i), Parent Sellers' shall promptly provide written notice to Buyer of Sellers' refusal to consent (a "Sellers' Objection Notice"). Any Sellers' Objection Notice shall describe the matter or matters objected to by Sellers and Merger Sub will have fundsshall describe in reasonable detail Sellers' basis for such objection. Upon receipt by the Buyer of a Sellers' Objection Notice, the Parties shall negotiate in good faith and endeavor to agree upon the aggregateterms and conditions or matters in dispute. If the parties do not reach an agreement within five (5) days of Sellers' Objection Notice, sufficient for the dispute shall be resolved by final, binding arbitration as hereinafter provided. Within three (3) days after expiration of such five (5) days period, each of Sellers and Buyers shall appoint an arbitrator, who shall be (i) in the payment case of the aggregate Cash Consideration a dispute regarding debt covenants, a banker experienced in oil and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, gas lending and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) in the funding case of any required refinancings or repayments of any existing indebtedness of the Company or Parent other dispute, an investment banker experienced in connection with the Merger or the Financing, oil and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries togas investment banking, and shall use its reasonable best efforts give notice of such appointment to cause each of its and their respective Representativesthe Buyer or Sellers, including legalas applicable. Within three (3) days after the two (2) arbitrators have been appointed, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing two (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 2) arbitrators shall select a third arbitrator who shall likewise be (i) provide in the case of a dispute regarding debt covenants, a banker experienced in oil and gas lending and
(ii) in the case of any other dispute, an investment banker experienced in oil and gas investment banking. The Parties shall make available to the arbitrators all relevant information relating to the Company dispute in question possessed by each such Party, and its Subsidiaries to the Financing Sources that is reasonably available to Sellers and Buyer may make written presentations or, if the Company and is customary for completion arbitrators so direct, oral arguments before the arbitrators. The decision of the Financing by the Financing Sources at least two (including audited consolidated financial statements 2) of the Company covering the three (3) fiscal years immediately preceding arbitrators as to reasonableness of Sellers' refusal to consent to the Closing for which audited consolidated financial statements are currently availablematters described in the Sellers' Objection Notice shall be rendered as soon as possible, unaudited financial statements but in no event later than two (excluding footnotes2) for any interim period or periods days following the final meeting of the Company ended after board of arbitrators, and shall be final and binding on the date Parties. If more than one dispute arises under this Section 5(k)(i), and such disputes are not resolved by agreement within the applicable five (5) day period as provided above, the resolution of all such disputes, if reasonably possible, shall be submitted to and resolved by a single board of arbitrators appointed as above provided following giving of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 first Sellers' Objection Notice 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested resolved by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiariesagreement.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 1 contract
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with things necessary to arrange the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), in a timely manner including using reasonable best efforts to (i) provide information relating negotiate and enter into definitive agreements (the "Debt Financing Agreements") with respect to, and on the terms and conditions contained in, the Debt Financing Commitment Letter in a timely manner, the terms and conditions of which shall not expand the conditions to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion closing of the Debt Financing by contained in the Debt Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)Commitment Letter, (ii) participate satisfy, or cause its Representatives to satisfy, on a timely basis all conditions in the Debt Financing Agreements and cause senior management to participate in a reasonable number of meetings with the Equity Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing SourcesCommitment Letter that are within its control, (iii) assist in cause the preparation of (A) Lenders and any customary offering documents, bank information memoranda, prospectuses and similar documents for other Persons providing the Financing, and (B) materials for rating agency presentationsDebt Financing to fund the Debt Financing at or prior to the Closing, (iv) cooperate with subject to the marketing efforts for any component terms and conditions of the Equity Financing (including consenting Commitment Letter, cause the Sponsors to fund the Equity Financing at or prior to the use of the Company’s Closing, 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), (v) execute subject to the terms and deliver conditions of the Debt Financing Commitment Letter and the Equity Financing Commitment Letter, draw upon and consummate the Financing at or prior to the Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment Letter or the Debt Financing Agreements, (or use reasonable best efforts to obtain from its advisors)x) Parent shall promptly so notify the Company, and cause its Subsidiaries to execute (y) each of Parent and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries Merger Sub shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit arrange to obtain alternative debt financing from the same or alternate sources, as promptly as practicable following the occurrence of such event (and in any cash event no later than ten (10) Business Days prior to the End Date), on terms and marketable securities conditions not materially less favorable, in the aggregate, to Parent and Merger Sub than those contained in the Debt Financing Commitment Letter, the Debt Financing Agreements and any related Fee Letter, in an amount sufficient (assuming (A) the Equity Financing is funded in accordance with the Equity Financing Commitment Letter, (B) the contributions contemplated by the Rollover Agreement are made in accordance with the terms of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representationsRollover Agreement, and (ixC) cooperate reasonably with Financing Sources’ due diligence, the satisfaction of the conditions to the extent customary obligation of Parent and reasonable and Merger Sub to consummate the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing Merger as set forth in the Commitment Letter Section 7.1 and Section 7.2 or the definitive agreements with respect thereto on terms and waiver of such conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (BParent) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of consummate the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed Agreement (the "Alternate Financing"), and to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead enter into new definitive agreements with respect to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.Alternate Financing
Appears in 1 contract
Samples: Merger Agreement (China Fire & Security Group, Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and Buyer shall use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory advisable or proper to arrange, obtain and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with consummate the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions (provided that such requested cooperation does including, to the extent applicable, the “flex” provisions) described in the Commitment Letter and any related Fee Letter (or on other terms that, with respect to conditionality, are not unreasonably interfere less favorable to Buyer than the terms and conditions (including any “flex” provisions) set forth in the Commitment Letter, and, with respect to amount, are in an amount not below the ongoing operations of the Company and its SubsidiariesAcquisition Financing Amount (“Acceptable Financing Terms”)), including by:
(i) maintaining in effect and enforcing its rights under the Commitment Letter and any Definitive Debt Financing Agreements,
(ii) using reasonable best efforts to satisfy on a timely basis (itaking into account the anticipated timing of the Marketing Period) provide information relating all conditions to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion funding of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or and the Definitive Debt Financing Agreements that are within its control (or, if deemed advisable by Buyer, seeking the waiver of conditions applicable to Buyer contained in the Commitment Letters and such Definitive Debt Financing Agreements) and
(iii) using reasonable best efforts to negotiate and enter into definitive agreements (which, with respect thereto to the bridge facility documentation, shall not be required until necessary or advisable to ensure that the funding thereof (if required to fund the Acquisition Financing Amount) will occur on terms the Closing Date) with respect to the Financing on Acceptable Financing Terms (the “Definitive Debt Financing Agreements”).
(b) Buyer shall (i) upon written request of the Seller, keep the Seller informed in reasonable detail of the status of its efforts to arrange the Financing and conditions (ii) give the Seller prompt notice of (x) any material breach or default, by any party to the Commitment Letter, of which Xxxxx becomes aware or (y) the receipt of any written notice from any Financing provider with respect to any breach of any of Buyer’s obligations under the Commitment Letter.
(c) Prior to the Closing, Buyer shall not agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its rights under, the Commitment Letter or Definitive Debt Financing Agreements without the Seller’s prior written consent, such consent not to be unreasonably withheld or delayed; provided that Buyer may, without the Seller’s prior written consent, (i) enter into any amendment, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive Debt Financing Agreements that does not (A) reduce the aggregate amount of the Financing contemplated by the Commitment Letter (any such agreements to an amount below the “Definitive Acquisition Financing Agreements”)Amount, (B) materially and adversely impact affect the ability of Parent Buyer to enforce its rights against other parties to the Commitment Letter or the Definitive Debt Financing AgreementsAgreements as so amended, supplemented, or (C) preventotherwise modified, impede or delay relative to the consummation ability of the Merger and Buyer, as applicable, to enforce its rights against the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply parties to the Commitment Letter as in effect on the date hereof or (C) impose new or additional conditions or expand any of the conditions to the availability of the Financing, make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing on or prior to the Closing Date less likely to occur or otherwise prevent, materially delay or impede the consummation of the Share Purchase (the limitations set forth in these clauses (A), (B) and (C), the “Prohibited Financing Amendments”), and (ii) amend, replace, supplement or otherwise modify the Commitment Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities that had not executed the Commitment Letter as of the date of this Agreement. Upon any such amendment, supplement or modification, the terms “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references modified. Buyer shall promptly deliver to the Financing shall be deemed to refer instead to Company copies of any such alternative financingamendment, supplement or other modification of the Commitment Letter.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 1 contract
Financing. (a) Parent covenants Subject to the terms and agrees with the Companyconditions of this Agreement, on behalf each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for shall use its reasonable best efforts to (i) obtain the payment Equity Financing on the terms and conditions described in the Equity Commitment Letters, (ii) maintain in effect the Equity Commitment Letters until the Transactions are consummated, (iii) satisfy, or cause to be satisfied, on a timely basis all conditions to the closing of and funding under the Equity Commitment Letters applicable to Parent and/or Merger Sub that are within its control, (iv) consummating the Equity Financing at or prior to the Effective Time and (v) subject to Section 9.08, enforcing the parties’ funding obligations and the rights of Parent and Merger Sub under the Equity Commitment Letters to the extent necessary to fund the Merger Consideration; provided that Parent and/or Merger Sub may amend or modify the Equity Commitment Letters so long as (A) the aggregate proceeds of the aggregate Cash Equity Financing (as amended or modified) will be sufficient for Parent and the Surviving Corporation to pay (1) the Merger Consideration and (2) any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or consummation of the Financing, Transactions upon the terms and conditions contemplated hereby and (iiiB) such amendment or modification would not prevent, materially delay or materially impede or impair (1) the payment ability of all fees Parent and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub to consummate the Transactions or (2) the rights and benefits of the Surviving Entity Company under the Equity Commitment Letters. Parent shall deliver to the Company true and complete copies of such amendment or modification as promptly as practicable after execution thereof. In the event any portion of the Equity Financing becomes unavailable on the terms and conditions contemplated in connection with the Merger and Equity Commitment Letters, Parent shall promptly notify the FinancingCompany.
(b) The Company shallSubject to the terms and conditions of this Agreement, shall cause its Subsidiaries toParent and Merger Sub agree not to amend, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations modify or waive any provision of the Company and its Subsidiaries)Equity Commitment Letters, including using reasonable best efforts to if such amendment, modification or waiver reduces (ior would reduce) provide information relating the aggregate amount of the Equity Financing or imposes new or additional conditions or otherwise expands, amends or modifies the conditions to the Company and its Subsidiaries to the Equity Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agenciesmanner that, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required expected to pay any commitment prevent or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented materially delay or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified materially 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact affect the ability of Parent or Merger Sub to enforce its rights against other parties consummate the Transactions. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of the Equity Commitment Letters or termination of any such Equity Commitment Letter by any party to the such Equity Commitment Letter or (ii) upon the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation receipt of any written notice from any party to an Equity Commitment Letter with respect to any threatened breach of any material provision of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Equity Commitment Letter as so amended, replaced, supplemented Letters or otherwise modified and/or threatened termination of any such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingEquity Commitment Letters.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 1 contract
Samples: Merger Agreement (Shanda Games LTD)
Financing. (a) Parent covenants Merger Subsidiary acknowledges and agrees with that, other than the obligations expressly set forth in this Agreement, the Company, on behalf of itself its Affiliates and its Subsidiaries, their respective Representatives have no responsibility for any financing that it shall take all action necessary to ensure that as of the Closing Date, Parent and or Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent Subsidiary may raise in connection with the Contemplated Transactions. Merger or Subsidiary represents and warrants to the FinancingCompany, and (iii) the payment each of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub Subsidiary and the Surviving Entity in connection with Company acknowledges and agrees that Merger Subsidiary’s obligation to consummate the Offer, the Merger and the other Contemplated Transactions is not subject to any financing condition. Parent will use its reasonable best efforts to obtain the Debt Financing on the terms and conditions described in the Commitment Letters, including using its reasonable best efforts to satisfy on a timely basis all conditions to the Debt Financing set forth therein that are applicable to Parent and to any of its subsidiaries, (iii) comply with its obligations under the Commitment Letters and (iv) consummate the Debt Financing at or prior to the time the Offer or the Merger is scheduled to be consummated hereunder, including using its reasonable best efforts to cause the Financing Parties and the other persons committing to fund the Debt Financing no later than at or prior to the time that each of the Offer and the Merger, respectively, is scheduled to be consummated hereunder. Prior to the execution of this Agreement, Parent has delivered to the Company copies of the Commitment Letters pursuant to which, and subject to the terms and conditions of which, the Financing Parties have committed to lend the amounts set forth therein to Parent for the purpose of funding the Offer, the Merger and the other Contemplated Transactions (such committed financing, together with, unless the context otherwise requires, any debt securities issued in lieu thereof, the “Debt Financing”).
(b) The Commitment Letters have been duly executed and delivered by, and constitute a valid and binding obligation of Parent, and to the knowledge of Merger Subsidiary, the Commitment Letters constitute a valid and binding obligations of the Financing Parties, enforceable against the Financing Parties in accordance with their terms, in each case except that (i) such enforcement may be subject to applicable laws of general application relating to bankruptcy, insolvency, reorganization or moratorium laws or other similar requirements of applicable Law, now or hereafter in effect, affecting creditors’ rights generally and the relief of debtors, and (ii) the rules of law governing specific performance, injunctive relief and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, (i) each of the Commitment Letters in the form so delivered is (as to Parent and, to the knowledge of Merger Subsidiary, the Financing Parties) valid and in full force and effect, (ii) none of the Commitment Letters has been withdrawn, terminated or otherwise amended or modified in any respect, (iii) Parent is not in breach of any of the material terms set forth therein, and (iv) no event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach by Parent of any material term of the Commitment Letters that would prevent the funds from being available, or the Financing Parties from lending, pursuant to the terms of the Commitment Letters.
(c) The Commitment Letters constitute, as of the date hereof, the entire and complete agreement among the respective parties thereto with respect to the Debt Financing contemplated thereby. Except as set forth, described or provided for in the Commitment Letters, there are no conditions precedent to the respective obligations of the Financing Parties under the Commitment Letters to provide the Debt Financing. The aggregate proceeds from the Debt Financing constitute all of the debt financing required for the consummation of the Offer, the Merger and the other Contemplated Transactions and, together with other cash sources, are sufficient to consummate the Offer, the Merger and the other Contemplated Transactions.
(d) As of the date hereof, (i) Merger Subsidiary has no reason to believe that any of the conditions to the Debt Financing will not be satisfied on a timely basis or that the funding contemplated in the Debt Financing will not be made available to Parent on a timely basis in order to consummate the Offer, the Merger and the other Contemplated Transactions, (ii) no event has occurred, to the knowledge of Merger Subsidiary, which would make any of the assumptions or any of the statements set forth in the Commitment Letters inaccurate in any material respect and (iii) no Financing Party has notified Parent of its intention to terminate any of the commitments set forth in the Commitment Letters or not to provide the Debt Financing.
(e) Parent has fully paid any and all commitment fees, if any, and other fees required by the Commitment Letters to have been paid to the Financing Parties on or prior to the date hereof.
(f) Merger Subsidiary will keep the Company shallinformed on a regular basis and in reasonable detail of the status of its and Parent’s efforts to consummate the Debt Financing (including providing the Company with copies of all definitive financing documents, if any, related to the Debt Financing). Without limiting the generality of the foregoing, Merger Subsidiary will give the Company prompt written notice (i) of any material breach or default by any party to the Commitment Letters or definitive financing documents related to the Debt Financing of which Merger Subsidiary becomes aware, (ii) of the receipt of any written notice or other written communication, in each case from any Financing Party with respect to (A) any material actual or potential breach or default, or any termination or repudiation by any party to any of the Commitment Letters or definitive financing documents related to the Debt Financing of any provisions of the Commitment Letters or definitive financing documents related to the Debt Financing or (B) any material dispute or disagreement between or among any parties to any of the Commitment Letters or definitive financing documents related to the Debt Financing with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at the Acceptance Time or the Effective Time, and (iii) if at any time for any reason Parent in good faith determines that it will not be able to obtain all or any material portion of the Debt Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Commitment Letters or definitive financing documents related to the Debt Financing. As soon as practicable after the Company delivers to Parent or Merger Subsidiary a written request, Merger Subsidiary will provide any information reasonably requested by the Company relating to any circumstance referred to in clause (i), clause (ii) or clause (iii) of the immediately preceding sentence.
(g) Parent will have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under the Commitment Letters, or substitute other debt or equity financing for all or any portion of the Debt Financing from the same or alternative Financing Parties; provided, however, that any such amendment, replacement, supplement, modification or waiver will not without the consent of the Company (not to be unreasonably withheld, conditioned or delayed) (i) impose additional conditions precedent to the Debt Financing or otherwise expand upon the conditions precedent to the Debt Financing as set forth in the Commitment Letters in any material way, (ii) be reasonably expected to prevent or impede the Acceptance Time, the Merger or the other Transactions, (iii) adversely and materially impact the ability of Parent to enforce its rights against the Financing Parties or the definitive financing documents with respect thereto or (iv) reduce the aggregate amount of the Debt Financing under the Commitment Letters, provided that Parent may reduce the aggregate amount of the Debt Financing under the Commitment Letters to the extent that Parent secures or receives such amount of cash proceeds as is necessary to consummate the Merger and the other Transactions (through the Debt Financing or other cash sources). Merger Subsidiary will promptly deliver to Company copies of any such amendment, replacement, supplement, modification or waiver.
(h) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letters, Merger Subsidiary will promptly so notify the Company and will use its reasonable best efforts to promptly seek to obtain alternative financing subject to terms and conditions not less favorable to Parent (in each case as determined in the reasonable judgment of Parent) and in an amount sufficient to consummate the Merger and the other Transactions, as promptly as reasonably practicable following the occurrence of such event (the “Alternative Financing”). In the event any Alternative Financing is obtained, any reference in this Agreement to “Debt Financing” shall be deemed to include the Alternative Financing. Merger Subsidiary shall deliver to the Company true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent with any portion of the Debt Financing substantially concurrently with the execution thereof.
(i) Immediately after giving effect to the transactions contemplated hereby, each of Parent and its subsidiaries, including Merger Subsidiary and the Company, shall be solvent and shall: (a) be able to pay its debts as they become due; (b) own property that has a fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount of all contingent liabilities); and (c) have adequate capital to carry on its business. 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 defraud either present or future creditors of any of Parent and its subsidiaries, including Merger Subsidiary and the Company. In connection with the transactions contemplated hereby, Parent has not incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured.
(j) Prior to the Closing, the Company shall use reasonable best efforts to provide to Parent and Merger Subsidiary, and shall cause each of its Subsidiaries toto use its reasonable best efforts to provide, and shall use its reasonable best efforts to cause Representatives of the Company to provide, in each case at the sole cost and expense of its Parent and their respective RepresentativesMerger Subsidiary, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice and Merger Subsidiary that is customary or necessary in connection with arranging and obtaining the Debt Financing, including: (i) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be required by the Debt Financing (provided that such requested cooperation does not unreasonably interfere including a certificate of an appropriate officer of the Company with the ongoing operations respect to solvency of the Company and its Subsidiaries), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion as of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding Effective Time to the businessextent required by, operations and financial projections of or necessary to satisfy conditions precedent under, the Company), (iiCommitment Letters) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent to the extent required by, or necessary to satisfy conditions precedent under, the Commitment Letters; (ii) facilitating the pledging of collateral for the Debt Financing to the extent required by, or necessary to satisfy conditions precedent under, the Commitment Letters; (iii) requesting from the Company’s existing lenders such customary documents in connection with re-financings as customary reasonably requested by Parent in connection with the FinancingDebt Financing and collateral arrangements, including any amendments customary payoff letters, lien releases, and instruments of any termination or discharge; (iv) furnishing Parent and the Financing Parties, to the extent requested by Parent, with all documentation and other information required by Governmental Entities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended; (v) assisting Parent in obtaining all documents, affidavits, estoppels and signatures required in connection with title insurance and other documentation and items relating to the Debt Financing as reasonably requested by Parent to the extent required by, or necessary to satisfy conditions precedent under, the Commitment Letters; (vi) taking all actions as may be required or reasonably requested by Parent to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Debt Financing; and (vii) cooperating with Parent, and taking all corporate actions, subject to the occurrence of the Company’s Effective Time, reasonably requested by Parent to permit the consummation of the Debt Financing; provided, however, that nothing in this Section 6.11(j) shall require such cooperation to the extent it would interfere unreasonably with the business or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any operations of the Company or its Subsidiaries shall be effective under credit agreementsSubsidiaries; and provided further, loan documents or currency or interest hedging arrangements or amendments that prior to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities none of the Company and Company, its Subsidiaries to be made available to Parent and/or Merger Sub at the ClosingSubsidiaries, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, representatives shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (ivx) be required to incur any indebtedness, grant any lien to secure indebtedness of Parent or Merger Subsidiary, or pay any commitment fee or other liability in connection with the Financing fee or payment to obtain any consent or otherwise, or (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (iy) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, under the Commitment Letters or with respect to any Debt Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this AgreementAgreement or any cooperation provided pursuant to this Section 6.11(j). Parent and Merger Subsidiary shall, jointly and (iii) shall severally, indemnify and hold harmless the Company, its Subsidiaries Subsidiaries, its Affiliates, and their respective Representatives representatives from and against any and all liabilities, losses, damages, claims, costs, expensesexpenses (including attorneys’ fees), interest, awards, judgments and penalties suffered or incurred by any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating this Section 6.11(j), except to the extent arising or resulting from such Persons’ gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. Parent shall, promptly upon request by the Company, reimburse the Company or its Subsidiaries for any out-of-pocket costs and information provided expenses (including reasonable attorneys’ fees) incurred by the Company, its Subsidiaries or their Representatives)Subsidiaries, except in the event that such lossesits Affiliates, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or and their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply representatives in connection with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement6.11(j).
Appears in 1 contract
Samples: Merger Agreement (Exar Corp)
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall cause their respective Subsidiaries and the Guarantors to, use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to consummate and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing on the terms (provided including the market “flex” provisions) set forth in the Financing Letters (or on other terms and conditions that such requested cooperation does not unreasonably interfere with are acceptable to parent, subject to the ongoing operations of the Company and its SubsidiariesProhibited Financing Modifications), including using reasonable best efforts to (i) provide information maintain (and cause each Guarantor to maintain) in effect and comply with the Financing Letters and, to the extent entered into prior to the Closing, the definitive agreements relating to the Company Financing in a timely and its Subsidiaries diligent manner (subject to Parent’s or Merger Sub’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the CompanyLetters in accordance herewith), (ii) participate negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (including the market “flex” provisions) and subject to those conditions set forth in the Debt Commitment Letter (or on other terms and conditions that are acceptable to Parent, subject to the Prohibited Financing Modifications), (iii) satisfy on a timely basis (taking into account the anticipated timing of the Closing and the Marketing Period) (or obtain a waiver of) all conditions applicable to (and within control of) Parent and Merger Sub in the Financing Letters and, to the extent entered into prior to the Closing, the definitive agreements relating to the Financing (including by consummating the Equity Financing at or immediately prior to the Closing on the terms and subject to the conditions set forth in the Equity Commitment Letters), (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Merger, consummate the Financing and cause senior management the Financing Sources, each Guarantor and the other Persons committing to participate fund the Financing to fund the Financing at the Closing, and (v) enforce its rights under the Financing Letters. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.5 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 (x) seek the Equity Financing from any source other than the Guarantors, or in any amount in excess of that contemplated by the Equity Commitment Letters, or (y) incur or pay any fees to obtain a reasonable number waiver of meetings with Financing Sources and other presentationsany term of the Debt Commitment Letter or pay any material fees that are, road showsin the aggregate, drafting sessions, due diligence sessions in excess of those contemplated by the Equity Commitment Letters or the Debt Commitment Letter (including accounting due diligence sessionsany market “flex” provisions contained therein).
(b) Prior to the Closing Date, Parent and sessions with Merger Sub shall not, without the rating agenciesprior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), (x) agree to or permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Equity Commitment Letters or (y) subject to the last sentence of this paragraph, agree to or permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Debt Commitment Letter or the Redacted Fee Letter if, in the case of this clause (y), such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letter on the date of this Agreement unless the amount of the Debt Financing or Equity Financing is increased by a corresponding amount) such that the Parent or Merger Sub, as applicable, would not have sufficient available funds necessary to pay the Required Amounts, (B) impose new or additional conditions precedent to the availability of the Debt Financing or expand or amend or modify any of the existing conditions precedent to the Debt Financing, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 would reasonably be expected to or reasonably make the funding of the Debt Financing less likely to harm occur or disparage the Company prevent or its Subsidiaries materially hinder 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 its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at delay the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (BC) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Debt Commitment Letter Letter, in each case, in a manner that would reasonably be expected to make the funding of the Debt Financing less likely to occur or the Definitive Financing Agreements, prevent or (C) prevent, impede materially hinder or delay the consummation Closing or (D) otherwise reasonably be expected to prevent or materially hinder or delay the Closing (the foregoing clauses (A) through (D), collectively, the “Prohibited Financing Modifications”). Notwithstanding the foregoing, any amendment, supplement or modification to effectuate any “market flex” terms contained in the Debt Commitment Letter and/or Redacted Fee Letter provided as of the date hereof or to add or replace lenders, lead arrangers, bookrunners, syndication agents or other similar entities (or titles with respect to such entities) thereto shall be permitted and shall not require written consent of the Company. Parent shall promptly deliver to the Company copies of any written amendment, modification, supplement, consent or waiver to or under any Financing Letter promptly upon execution thereof.
(c) Parent shall, upon Company’s reasonable request, keep the Company informed on a reasonably prompt basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and, upon Company’s reasonable request, provide to the Company complete, correct and executed copies of the material definitive documents for the Debt Financing. Parent and Merger Sub shall give the Company prompt written notice of (i) any material breach, default, termination, cancellation or repudiation by any party to any of the Financing Letters of which Parent or Merger Sub becomes aware, (ii) the receipt by Parent or Merger Sub of any written notice or other written communication from any Financing Source with respect to any actual or alleged (in writing) material breach, default, termination, cancellation or repudiation by any party to any of the Financing Letters of any provisions of the Financing Letters and (iii) the other transactions occurrence of an event or development that would reasonably be expected to adversely impact the ability of Parent or Merger Sub to obtain all or any portion of the Financing necessary to fund the Required Amount on the Closing Date. Additionally, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence, subject to applicable legal privilege or confidentiality obligations.
(d) Without limiting Parent or Merger Sub’s obligations hereunder, if all or any portion of the Debt Financing becomes unavailable on the terms and conditions (including any applicable market “flex” provisions) contemplated by this Agreement. This Section 6.11 the Debt Commitment Letter and such portion is necessary to fund the Required Amount, Parent shall be deemed promptly notify the Company in writing and Parent and Merger Sub shall use their reasonable best efforts to apply arrange and obtain, as promptly as practicable prior to the termination date, alternative debt financing from the same or alternative sources in an amount sufficient, together with the remaining available Financing, to fund the Required Amount and with terms and conditions (including market “flex” provisions) not less favorable to Parent and Merger Sub (or their respective Affiliates) than the terms and conditions set forth in the Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references (“Alternative Debt Financing”). Parent shall deliver to the Company forthwith if it obtains the same true and complete executed copies of any commitment letters (including related fee letters) with respect to any Alternative Debt Financing shall (which fee letters may be deemed to refer instead to such alternative financingredacted in a fashion consistent with the Redacted Fee Letter).
(e) All non-public For purposes of this Agreement, references to (x) the “Financing” shall include the financing contemplated by the Financing Letters as permitted to be amended, modified, supplemented, waived or otherwise confidential information regarding the Company obtained replaced by Parent or its Representatives pursuant to this Section 6.11 6.5 and any Alternative Debt Financing, (y) the “Debt Commitment Letter” shall include such documents as permitted to be kept confidential in accordance amended, modified, supplemented, waived or replaced by this Section 6.5 and any commitment letter or other binding documentation with respect to any Alternative Debt Financing and (z) “Debt Financing” shall include the Confidentiality Agreementdebt financing contemplated by the Debt Commitment Letter as permitted to be amended, modified, supplemented, waived or replaced by this Section 6.5 and any Alternative Debt Financing.
Appears in 1 contract
Samples: Merger Agreement (Cloudera, Inc.)
Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent a)(i)Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its their respective reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things reasonably necessary, regulatory proper or advisable to arrange and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing on the terms and conditions described in the Financing Commitments (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiariesincluding any applicable “market flex” provisions), including using and use reasonable best efforts to (iA) provide information relating to the Company and its Subsidiaries to maintain in effect the Financing Sources that Commitments until the Merger is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently availableconsummated, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting to the use of the Company’s negotiate 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit enter into definitive agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing on the terms and conditions (including any applicable “market flex” provisions) contemplated by the Financing Commitments (or alternative financing on other terms that are acceptable to Parent may raise in connection with and could not reasonably be expected to (1) reduce the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary dutiesaggregate amount of net cash proceeds available from the Financing, (ii2) introduce new or additional conditions or otherwise be required reasonably likely to pay any commitment prevent, impede, delay or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to impair the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement availability of the Financing and any information utilized in connection therewith (other than historical information relating or the ability of Parent or Merger Sub to consummate the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence Merger as of the Company, any of its Subsidiaries Closing or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B3) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter Financing Commitments, (C) satisfy on or prior to the Closing all conditions precedent applicable to Parent and Merger Sub in the Financing Commitments, (D) consummate the Financing at or prior to the Closing, (E) enforce the rights of Parent and Merger Sub under the Financing Commitments and (F) comply in all material respects with its covenants and other obligations under the Financing Commitments. Notwithstanding anything contained herein to the contrary, neither Parent nor Merger Sub will permit any amendment, supplement or other modification of, or waiver of any provision or remedy under, the Financing Commitments to the extent such amendment, supplement, other modification or waiver could reasonably be expected to (1) reduce the aggregate amount of net cash proceeds available from the Financing, (2) introduce new or additional conditions or otherwise be reasonably likely to prevent, impede, delay or impair the availability of the Financing or the Definitive Financing Agreementsability of Parent or Merger Sub to consummate the Merger as of the Closing, or (C3) prevent, impede adversely impact the ability of Parent or delay the consummation of the Merger and Sub to enforce its rights against the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references parties to the Financing shall be deemed Commitments. Parent and Merger Sub will deliver to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent copies of any such amendment, modification, replacement or waiver promptly upon its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreementexecution thereof.
Appears in 1 contract
Financing. (a) Parent covenants and agrees with the Company, on behalf Each of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall cause their respective Affiliates to, use its reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to consummate and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing on the terms (provided that including the market “flex” provisions) (or on other terms acceptable to Parent, so long as such requested cooperation does not unreasonably interfere terms, with respect to conditionality, are no less favorable to Parent or Merger Sub) and subject only to the ongoing operations of conditions set forth in the Company and its Subsidiaries)Financing Letters, including using reasonable best efforts to (i) provide information maintain in effect and comply with the Financing Letters and the definitive agreements relating to the Company Financing, (ii) negotiate and its Subsidiaries enter into definitive agreements with respect to the Debt Financing Sources that is reasonably available on the terms (including the market “flex” provisions) and subject only to the Company and is customary for completion conditions set forth in the Debt Commitment Letter (or on other terms acceptable to Parent, subject to the Prohibited Financing Modifications), (iii) satisfy on a timely basis, taking into account the expected timing of the Financing by Marketing Period, all conditions that are within its control and applicable to Parent and Merger Sub in the Financing Sources Letters and the definitive agreements related thereto (including audited consolidated financial statements of by consummating the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period Equity Financing at or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date on the terms and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating subject to the completion of the Financing by the Financing Sources, (iii) assist conditions set forth in the preparation Equity Commitment Letter) (or, if necessary or deemed advisable by Parent, seek the waiver of (A) any customary offering documents, bank information memoranda, prospectuses conditions applicable to Parent and similar documents for the Financing, and (B) materials for rating agency presentationsMerger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto), (iv) cooperate with upon the marketing efforts for satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Transactions, consummate the Financing at the Closing and cause the lenders and the other Persons committing to fund the Financing to fund the Financing at Closing, and (v) enforce its rights under the Financing Letters and the definitive agreements relating to the Financing. Parent and Merger Sub shall not, and shall cause its respective Affiliates to not, without the prior written consent of the Company, (x) agree to or permit any component termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Equity Commitment Letter (other than as expressly permitted under the Equity Commitment Letter as in effect on the date hereof) or (y) agree to or permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Debt Commitment Letter, any related fee letter or the definitive agreements relating to the Debt Financing if, in the case of this clause (y), such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of any portion of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letter on the date of this Agreement unless the Debt Financing or Equity Financing is increased by a corresponding amount) such that the aggregate amount of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements after taking into account available cash of the Company and its Subsidiaries until (but giving due consideration to any material tax consequences related to repatriation)) would be below the Effective Time, (vi) use its reasonable best efforts, as appropriate, amount required to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of pay the Company and its Subsidiaries to be made available to Parent and/or Merger Sub Required Amounts at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course (B) impose new or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters additional conditions precedent to the availability of the Debt Financing Sources authorizing or otherwise expand, amend or modify any of the distribution of information to prospective lenders and containing a representation conditions precedent to the Debt Financing Sources in a manner that would reasonably be expected to delay or prevent the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business funding of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Debt Financing (or alternative financing that Parent may raise in connection with satisfaction of the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related conditions to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this AgreementDebt Financing) or (ivC) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable materially and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Debt Commitment Letter or the Definitive definitive agreements with respect to the Debt Financing Agreements(the foregoing clauses (A) through (C), collectively, the “Prohibited Financing Modifications”). For the avoidance of doubt, the Debt Commitment Letter may be amended or modified to add lenders, lead arrangers, co-managers, bookrunners, syndication agents or any person with similar roles or titles who had not executed the Debt Commitment Letter as of the date of this Agreement. Parent shall promptly deliver to the Company copies of any amendment, modification, supplement, consent or waiver to or under any Financing Letter or the definitive agreements relating to the Financing promptly upon execution thereof. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.15 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 (x) seek the Equity Financing from any source other than the counterparties to, or in any amount in excess of that contemplated by, the Equity Commitment Letter, or (Cy) prevent, impede pay any fees in excess of those contemplated by the Equity Commitment Letter or delay the consummation Debt Commitment Letter (including any market “flex” provision contained therein).
(b) Parent shall promptly inform the Company upon request in reasonable detail of the Merger and status of its efforts to arrange the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply Debt Financing and, upon request, provide to the Commitment Letter as so amendedCompany complete, replacedcorrect and executed copies of the material definitive documents for the Debt Financing. Parent and Merger Sub shall give the Company prompt written notice (i) of any breach, supplemented default, termination, cancellation or otherwise modified and/or such other debt repudiation by any party to any of the Financing Letters or equity financing and references definitive documents related to the Financing shall of which Parent or Merger Sub becomes aware (or any event or circumstance, that, with or without notice, lapse of time or both, would reasonably be deemed expected to refer instead give rise to such alternative financing.
any breach, default, termination, cancellation or repudiation), (eii) All non-public or otherwise confidential information regarding of the Company obtained receipt by Parent or its Representatives pursuant Merger Sub of any written notice or other written communication from any Financing Source with respect to this Section 6.11 shall be kept confidential in accordance with any (A) breach, default, termination, cancellation or repudiation by any party to any of the Confidentiality Agreement.Financing Letters or any definitive document related to the Financing of any provisions of the Financing Letters or any definitive document related to the Financing or
Appears in 1 contract
Samples: Merger Agreement (Tech Data Corp)
Financing. (a) Each of Parent covenants and agrees Merger Sub shall use their respective reasonable best efforts to take or cause to be taken, and Parent shall use its respective reasonable best efforts to cause its Subsidiaries and each of their respective Representatives and Affiliates 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 consummate on a timely basis the Debt Financing as contemplated by the Debt Commitment Letters (or in the event any portion or all of such Debt Financing becomes unavailable or otherwise undesirable, alternative financing (“Alternative Financing”) (in an amount sufficient, together with the Companyremaining Debt Financing contemplated by the Commitment Letter, if any, cash on behalf hand of itself and its Subsidiariesany other sources available to Parent and Merger Sub, that it shall take all action necessary to ensure that as fund the payment of the Closing DateFunding Obligations) from the same or other sources) as and to the extent (but only to the extent) required to fund the Funding Obligations. To the extent that (i) Parent and Merger Sub require Debt Financing contemplated by the Debt Commitment Letters in order to fund the Funding Obligations and (ii) the Debt Financing under the Debt Commitment Letters has not become unavailable, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in amend the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters Debt Commitment Letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) impose additional conditions precedent or contingencies to the funding on the Closing Date of the Debt Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) that would adversely impact the ability of Parent and Merger Sub to enforce its rights against other parties consummate the Merger; provided, that if the Debt Financing under the Debt Commitment Letters has become unavailable, the terms of the Alternative Financing will not adversely impact the ability of Parent and Merger Sub to consummate the Merger.
(b) Each of Parent and Xxxxxx Sub expressly acknowledges and agrees that neither the availability, the terms nor the obtaining of the Debt Financing or any Alternative Financing, nor the completion of any issuance of securities contemplated by the Debt Financing or any Alternative Financing, is in any manner a condition to the Commitment Letter Merger, the Closing or the Definitive obligations of Parent and Merger Sub to consummate the Transactions, and reaffirms its obligation to consummate the Merger and the other Transactions irrespective and independently of the availability of the Debt Financing Agreementsor any Alternative Financing, or the completion of any such issuance, subject to the applicable conditions set forth in Section 7.1 and Section 7.3.
(c) Upon the written request of the Company, Parent and Merger Sub shall keep the Company reasonably informed of the status of the efforts of Parent or Merger Sub to arrange the Debt Financing. Parent and Merger Sub shall (i) give the Company prompt written notice of any (A) material breach or material default by any party to the Debt Commitment Letters of which Parent or Merger Sub becomes aware, including the receipt of any written notice from any Debt Financing Source with respect to any material breach or material default by any party to the Debt Commitment Letters, (B) written withdrawal, repudiation or termination of the Debt Commitment Letters by the financing sources party thereto of which Parent or Merger Sub becomes aware, or (C) prevent, impede incurable event or delay circumstance that makes a condition precedent relating to the consummation Debt Financing unable to be satisfied (in the good faith determination of Parent) by any party of which Parent or Merger Sub becomes aware and (ii) notify the Company promptly if for any reason Parent or Merger Sub no longer believes in good faith that it will be able to obtain all or any portion of the Merger and the other transactions Debt Financing contemplated by the Debt Commitment Letters from the sources described therein; provided, that, that nothing in this Agreement. This Section 6.11 sentence or the immediately preceding sentence shall be deemed require Parent or Merger Sub to apply disclose any information that is subject to the attorney-client or work product or similar privilege or the disclosure of which would result in the breach of any of Parent’s confidentiality obligations set forth in the applicable Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financingLetters.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 1 contract
Samples: Merger Agreement (Encore Wire Corp)
Financing. (a) Parent covenants Prior to and agrees with at the CompanyClosing, on behalf of itself the Sellers shall, and its Subsidiaries, that it shall take all action necessary to ensure that as cause each of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries Transferred Entities to, and shall use its their reasonable best efforts to cause each of its their advisors and their respective Representatives, representatives (including legal, tax, regulatory and accounting, auditors) to, provide all such cooperation as is necessary or customary and reasonably requested by Purchaser Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist Purchaser Parent in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments arrangement of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative debt financing that Parent may raise in connection with the transactions contemplated by this Agreement; provided, that nothing herein shall require such cooperation to the extent it would (i) if such Representative believes such action would be inconsistent unreasonably interfere with their fiduciary dutiesthe conduct of the business or operations of Parent and its Subsidiaries taken as a whole, (ii) be required require Parent or any of its Subsidiaries to agree to pay any commitment or other similar feefees; reimburse any expenses (except as set out herein); provide any security prior to the Closing Date; provide any legal opinions; enter into any agreements, certificates or other instruments (except for (A) in the case of the Transferred Entities, to the extent such are only made effective at Closing, (B) customary bank authorization letters, and (C) release documentation contemplated by Section 2.03(b)(i)(G)); or otherwise incur any Liability or give any indemnities, or (iii) have any liability require Parent or any obligation under of its Subsidiaries to take any credit agreement action that would reasonably be expected to conflict with, or result in any violation or breach of, or constitute (with or without due notice or lapse of time, or both) a default under, any organizational document of Parent or any related document applicable material Laws or any other agreement or document related Business Material Contracts made available to Purchaser Parent prior to the Financing (or alternative financing that date hereof. Purchaser Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the CompanyParent, reimburse the Company Parent or cause Parent to be reimbursed for all reasonable and documented out-of-pocket costs and expenses actually (including reasonable and documented outside attorneys’ fees) incurred by the Company, Parent or any of its Subsidiaries (including the Transferred Entities, whose costs and expenses in connection with any such debt financing shall, notwithstanding anything to the contrary herein, be the sole responsibility of Purchaser Parent) or their respective Representatives representatives in connection with any such debt financing, including the cooperation of the Company and its Subsidiaries contemplated by this Section 6.115.07, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from shall indemnify and after the Effective Time, the Companyhold harmless Parent, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties Liabilities suffered or incurred by any of them prior to the Effective Time in connection with the arrangement of the Financing any such debt financing and any information utilized used in connection therewith (other than historical information relating therewith, except with respect to any Fraud or intentional misrepresentation or willful misconduct by any such Persons, or to the Company extent arising directly from a material inaccuracy in any information provided by Parent or its Subsidiaries and information provided included by the Company, its Subsidiaries or their Representatives), except Purchaser Parent in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect offering documents relating to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other applicable debt or equity financing to the same extent that the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Alliance Data Systems Corp)
Financing. (a) Parent covenants has provided the Company with true and agrees with correct copies of the CompanyEquity Commitment Letter and Debt Commitment Letter, on behalf of itself any side letters related to the Commitment Letters and its Subsidiariesany fee letter related to the Debt Commitment Letter (the “Debt Financing Fee Letter”); provided, that it shall take all action in the case of the Debt Financing Fee Letter, fee amounts and commercially sensitive economic terms and “market flex” provisions, none of which (x) impose or permit the imposition of any different or additional conditions, or expand or modify or permit the expansion or modification of any of the existing conditions, to the consummation of the Debt Financing or (y) would or would reasonably be expected to reduce the aggregate amount of the Debt Financing available to Parent, Merger Sub or the Debt Financing Borrower at the Offer Closing or the Closing below the amount necessary to ensure that as fund the Required Amount (after taking into account the Equity Financing and any available cash of Parent, the Company and their respective Subsidiaries) or affect the availability of the full amount of the Debt Financing at the Offer Closing Dateand the Closing necessary to fund the Required Amount (after taking into account the Equity Financing), Parent and Merger Sub will may have funds, in been redacted to the aggregate, sufficient for extent required by the Debt Commitment Letter. Assuming (i) the satisfaction or waiver of the conditions expressly set forth herein to Parent’s and Merger Sub’s obligations to consummate the Offer and the Merger and (ii) that the Financing is funded or invested at the Offer Closing and the Closing in accordance with the Debt Commitment Letter and the Equity Commitment Letter, as applicable, Parent will have, and will cause Merger Sub to have, at the Offer Closing and the Closing (as applicable), the funds necessary (both before and after giving effect to any exercise of “market flex”) to (x) consummate the Offer, the Merger and the other Transactions, including payment in cash of the aggregate Cash Offer Price at the Offer Closing and the aggregate Merger Consideration at the Closing, (y) make the payments pursuant to Section 3.7 and (z) pay all related fees, discounts and expenses (collectively, the “Required Amount”). The only conditions precedent related to the obligations of the Guarantors to fund the full amount of the Equity Financing and the Debt Financing Sources to fund the full amount of the Debt Financing are those expressly set forth in the Equity Commitment Letter and the Debt Commitment Letter, respectively. The Commitment Letters are (x) legal, valid and binding obligations of the Debt Financing Borrower and, to the Knowledge of Parent, each of the other parties thereto, (y) enforceable in accordance with their respective terms against the Debt Financing Borrower and, to the Knowledge of Parent, each of the other parties thereto, in each case except as such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, and (z) as of the date of this Agreement, in full force and effect (except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity). As of the date hereof, the commitments and agreements contemplated by each Commitment Letter have not been withdrawn, terminated, repudiated, rescinded, supplemented or otherwise amended or modified in any respect, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, supplement, amendment, modification or waiver is contemplated (other amounts than to add lenders, lead arrangers, bookrunners, syndication agents or other similar entities who had not executed the Debt Commitment Letter as of the date hereof). As of the date hereof, neither Parent, the Debt Financing Borrower nor, to the Knowledge of Parent, any Debt Financing Source named therein, is in breach of any of the terms or conditions set forth in the Debt Commitment Letter or the Debt Financing Fee Letter, and no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach under the Debt Commitment Letter on the part of Parent, the Debt Financing Borrower or, to the Knowledge of Parent, any Debt Financing Source named therein. The Commitment Letters and the Debt Financing Fee Letter constitute the entire and complete agreement among the parties thereto with respect to the transactions contemplated thereby and the financing for the Transactions, and, except as expressly set forth in each Commitment Letter, (i) there are no conditions precedent to the obligation of the Financing Sources to fund the Financing in an amount necessary to fund the Required Amount, and (ii) there are no side letters or contracts to which Parent, the Debt Financing Borrower or Merger Sub is a party relating to the Transactions that would permit the Financing Sources to reduce the total amount of the Financing below the amount necessary to fund the Required Amount or impose any different or additional conditions, or expand or modify any of the existing conditions, to the availability of all or any portion of the Financing necessary to fund the Required Amount. Parent and the Debt Financing Borrower have fully paid any and all commitment fees or other fees required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Financing on or prior to the date hereof. As of the date hereof, assuming the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Offer and the Merger, Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing, and full amount of the Financing necessary to fund the Required Amount (iii) the payment after taking into account available cash of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub the Company and their respective Subsidiaries) will not be made available to Parent at the Offer Closing and the Surviving Entity Closing (as applicable) in connection with order to consummate the Merger and the FinancingTransactions.
(b) The Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (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 information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agenciesWithout limiting Section 9.10, in each caseno event shall the receipt or availability of any funds or financing by or to Parent, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of 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 Merger Sub or any of its Subsidiaries), (v) execute and deliver (their respective Affiliates or use reasonable best efforts any other financing transaction be a condition to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s obligations of Parent or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiarieshereunder.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
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Financing. (a) Parent covenants and agrees with the Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant Subject to the terms and conditions of Section 1.9 in respect of the Company RSU Awardsthis Agreement, Parent shall (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Company shall, shall cause its Subsidiaries Affiliates to, and shall ) use its commercially reasonable best efforts to take, or cause each of its to be taken, all actions and their respective Representativesto do, including legalor cause to be done, taxall things necessary, regulatory proper or advisable to consummate and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with obtain the Financing on the terms and subject only to the conditions (provided that such requested cooperation does not unreasonably interfere with including pursuant to any “flex” provisions in any fee letter relating to the ongoing operations of Debt Financing) set forth in the Company and its Subsidiaries)Financing Letters, including using commercially reasonable best efforts to (i) provide information relating to comply with its obligations under (A) the Company Equity Funding Letters and its Subsidiaries to (B) the Financing Sources that is reasonably available to the Company Debt Commitment Letters and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company)definitive agreements related thereto, (ii) participate and cause senior management maintain in effect the Financing Letters (subject to participate Parent’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessionsaccordance herewith) and sessions with until the rating agencies, in each case, relating to the completion earliest of the consummation of the Transactions, the termination of this Agreement, the termination of such Financing by Letters in accordance with their respective terms or the time at which any Alternative Debt Financing Sourcesis available, (iii) assist negotiate and enter into definitive agreements with respect to the Debt Financing on a timely basis on terms and conditions (including the flex provisions) contained in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for Debt Commitment Letters or otherwise not materially less favorable with respect to conditionality to Parent in the Financing, and (B) materials for rating agency presentationsaggregate than those contained in the Debt Commitment Letters, (iv) cooperate with the marketing efforts for any component of satisfy on a timely basis all conditions contained in the Financing (Letters that are applicable to Parent and its Affiliates and the definitive agreements related thereto, including consenting the payment of any commitment, engagement or placement fees required as a condition 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 Debt Financing 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)Equity Financing, as applicable, (v) execute if all conditions to the Debt Financing and deliver the Equity Financing have been satisfied in accordance with the Debt Commitment Letters and Equity Funding Letters, respectively, cause the Persons committing to fund the applicable Financing to fund such Financing at the Closing and (or use reasonable best efforts to obtain from vi) enforce its advisors), rights under the Financing Letters and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit the definitive agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to . To the Financing as may be extent reasonably requested by the Company in writing from time to time, Parent as customary shall keep the Company reasonably informed on a reasonably current basis and in connection with the Financing, including any amendments of any reasonable detail of the Company’s or status of its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of arrange the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders 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, provided that the Company shall have received such documents in reasonable time to review and provide such representations, and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) Notwithstanding the foregoing, until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall (i) be required to take any action in the capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) 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 contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) 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 any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representativescopies (including material drafts), except in the event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter 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, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall be deemed to refer instead to such alternative financing.
(e) All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement.
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