OF FACILITY AGREEMENT. 6.1 Each of the parties hereto undertake to negotiate in good faith, to use all reasonable commercial efforts and to allocate sufficient resources and personnel for the purposes of such negotiations, to agree the terms of, and upon such agreement shall enter into, the Facility Agreement and the other Finance Documents (required to be entered into as a condition precedent to the initial utilisation of the Facility) in all relevant capacities, as soon as reasonably practicable following countersigning of this Commitment Letter by the Borrower and in any event by or on the date falling 9 months after the date of this Commitment Letter (or such later date as may be mutually agreed by the parties hereto (each party acting reasonably)) (the “Proposed Signing Date”), subject to: (a) your signing and returning to us copies of the Underwriting Documents; and (b) entry into the Acquisition Agreement by the parties thereto. 6.2 The Mandated Lead Arrangers’ and the Underwriters’ undertaking under paragraph 6.1 above shall expire on the termination or expiry of this Commitment Letter. 6.3 The Intercreditor Agreement and Transaction Security Documents that are required to be entered into by certain Obligors and Group Members as conditions precedent to first drawdown under the Facility Agreement shall be drafted and negotiated between each of the parties hereto in good faith and on terms consistent with the Term Sheet. 6.4 If, despite good faith negotiation, we and the Borrower are not able to agree on a term of the Facility Agreement or the Intercreditor Agreement by the Proposed Signing Date, such term will, to the extent comparable with respect to the Facility, be in the form of: (a) the current standard form Primary (Leveraged) LMA Senior Multicurrency Term and Revolving Facilities Agreement (the “LMA Precedent Facilities Agreement”) (subject to the specific terms of the Term Sheet); or, as the case may be, (b) the standard form LMA Intercreditor Agreement for Leveraged Acquisition Finance Transactions (the “LMA Precedent Intercreditor Agreement” and together with the LMA Precedent Facilities Agreement, the “LMA Precedent Finance Documents”), provided that where the relevant LMA Precedent Finance Document contains a drafting option, is silent on a particular point or the provisions of the relevant LMA Precedent Finance Document require more than minor or technical changes in order to be incorporated into the Facility Agreement or, as the case may be, the Intercreditor Agreement, the relevant option or language shall be such option or language as is reasonably requested by the Mandated Lead Arrangers or if the Mandated Lead Arrangers do not specify any option or language within 5 Business Days of the date of a written request by you (for such option or language), such option or language reasonably requested by you, provided that such option or language shall not be inconsistent with the Term Sheet or the Underwriting Documents. 7 UNDERTAKING TO PAY 7.1 You undertake to pay (or to procure payment) to each of the Indemnified Persons (as defined below) as soon as reasonably practicable, and in any event within 5 Business Days following demand, an amount equal to any liability, damages, cost, loss or expense (each, a “Loss”) (including reasonable and documented legal fees) incurred by any of the Mandated Lead Arrangers, the Underwriters, the Facility Agent, the Security Agent or any of their respective Affiliates or any of their (or their respective Affiliates’) directors, officers, employees or agents (each, an “Indemnified Person”) arising out of, in connection with or based on any action, claim, suit, investigation or proceeding (in each case, whether or not any Indemnified Person is party and including any action, claim, investigation or proceeding to preserve or enforce rights) commenced, pending or threatened in relation to any Underwriting Document, the use of proceeds of the Facility or the Acquisition (whether or not made) except to the extent that such Loss resulted primarily from (a) the gross negligence or wilful misconduct of such Indemnified Person, (b) any breach by such Indemnified Person of any term of the Underwriting Documents or any confidentiality undertaking with any Obligor or any Group Member, (c) any wilful breach by such Indemnified Person of any applicable law or (d) claims of an Indemnified Person solely against one or more other Indemnified Persons and not arising out of any act or omission by you, an Obligor, any Group Member or any Affiliate thereof. 7.2 You undertake to pay (or to procure payment) to each Indemnified Person on demand an amount equal to any cost or expense (including reasonable and documented legal fees) incurred by such Indemnified Person in connection with investigating, preparing, pursuing or defending any action, claim, suit, investigation or proceeding arising out of, in connection with or based on any of the above, whether or not any Indemnified Person is a party. 7.3 None of the Mandated Lead Arrangers or the Underwriters shall have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made under paragraph 7.1 or 7.2. 7.4 You agree that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or any of your Affiliates for or in connection with anything referred to in paragraph 7.1 except, following your agreement to the Underwriting Documents, for (a) any breach of any Underwriting Document or the Facility Agreement or (b) any such liability for losses, claims, damages or liabilities incurred by you or any of your Affiliates that in each case resulted primarily from the gross negligence or wilful misconduct of that Indemnified Person. No Indemnified Person shall be responsible or have any liability to you or any of your Affiliates or anyone else for consequential losses or damages. 7.5 Each Indemnified Person shall, to the extent legally permissible and reasonably practicable and (in the determination of such Indemnified Person) not prejudicial to the interests of such Indemnified Person, consult with you in connection with the conduct of any defence in connection with any action, claim, suit, proceeding or investigation against such Indemnified Person in respect of which such Indemnified Person seeks indemnification under paragraph 7.1 or 7.
Appears in 1 contract
Samples: Commitment Letter
OF FACILITY AGREEMENT. 6.1 Each of the parties hereto here to undertake to negotiate in good faith, to use all reasonable commercial efforts and to allocate sufficient resources and personnel for the purposes of such negotiations, to agree the terms of, and upon such agreement shall enter into, the Facility Agreement and the other Finance Documents (required to be entered into as a condition precedent to the initial utilisation of the Facility) in all relevant capacities, as soon as reasonably practicable following countersigning of this Commitment Letter by the Borrower and in any event by or on the date falling 9 months after the date of this Commitment Letter (or such later date as may be mutually agreed by the parties hereto (each party acting reasonably)) (the “Proposed Signing Date”), subject to:
(a) your signing and returning to us copies of the Underwriting Documents; and
(b) entry into the Acquisition Agreement by the parties thereto.
6.2 The Mandated Lead Arrangers’ and the Underwriters’ undertaking under paragraph 6.1 above shall expire on the termination or expiry of this Commitment Letter.
6.3 The Intercreditor Agreement and Transaction Security Documents that are required to be entered into by certain Obligors of the Transaction Obligors, Holdco Group Members and Group Members as conditions precedent to first drawdown under the Facility Agreement shall be drafted and negotiated between each of the parties hereto in good faith and on terms consistent with the Term Sheet.
6.4 If, despite good faith negotiation, we and the Borrower are not able to agree on a term of the Facility Agreement or the Intercreditor Agreement by the Proposed Signing Date, such term will, to the extent comparable with respect to the Facility, be in the form of:
(a) the current standard form Primary (Leveraged) LMA Senior Multicurrency Term and Revolving Facilities Agreement (the “LMA Precedent Facilities Agreement”) (subject to the specific terms of the Term Sheet); or, as the case may be,
(b) the standard form LMA Intercreditor Agreement for Leveraged Acquisition Finance Transactions (the “LMA Precedent Intercreditor Agreement” and together with the LMA Precedent Facilities Agreement, the “LMA Precedent Finance Documents”), provided that where the relevant LMA Precedent Finance Document contains a drafting option, is silent on a particular point or the provisions of the relevant LMA Precedent Finance Document require more than minor or technical changes in order to be incorporated into the Facility Agreement or, as the case may be, the Intercreditor Agreement, the relevant option or language shall be such option or language as is reasonably requested by the Mandated Lead Arrangers or if the Mandated Lead Arrangers do not specify any option or language within 5 Business Days of the date of a written request by you (for such option or language), such option or language reasonably requested by you, provided that such option or language shall not be inconsistent with the Term Sheet or the Underwriting Documents.
7 UNDERTAKING TO PAY
7.1 You undertake to pay (or to procure payment) to each of the Indemnified Persons (as defined below) as soon as reasonably practicable, and in any event within 5 Business Days following demand, an amount equal to any liability, damages, cost, loss or expense (each, a “Loss”) (including reasonable and documented legal fees) incurred by any of the Mandated Lead Arrangers, the Underwriters, the Facility Agent, the Security Agent or any of their respective Affiliates or any of their (or their respective Affiliates’) directors, officers, employees or agents (each, an “Indemnified Person”) arising out of, in connection with or based on any action, claim, suit, investigation or proceeding (in each case, whether or not any Indemnified Person is party and including any action, claim, investigation or proceeding to preserve or enforce rights) commenced, pending or threatened in relation to any Underwriting Document, the use of proceeds of the Facility or the Acquisition (whether or not made) except to the extent that such Loss resulted primarily from (a) the gross negligence or wilful misconduct of such Indemnified Person, (b) any breach by such Indemnified Person of any term of the Underwriting Documents or any confidentiality undertaking with any Obligor or any Group Member, (c) any wilful breach by such Indemnified Person of any applicable law or (d) claims of an Indemnified Person solely against one or more other Indemnified Persons and not arising out of any act or omission by you, an Obligor, any Group Member or any Affiliate thereof.
7.2 You undertake to pay (or to procure payment) to each Indemnified Person on demand an amount equal to any cost or expense (including reasonable and documented legal fees) incurred by such Indemnified Person in connection with investigating, preparing, pursuing or defending any action, claim, suit, investigation or proceeding arising out of, in connection with or based on any of the above, whether or not any Indemnified Person is a party.
7.3 None of the Mandated Lead Arrangers or the Underwriters shall have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made under paragraph 7.1 or 7.2.
7.4 You agree that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or any of your Affiliates for or in connection with anything referred to in paragraph 7.1 except, following your agreement to the Underwriting Documents, for (a) any breach of any Underwriting Document or the Facility Agreement or (b) any such liability for losses, claims, damages or liabilities incurred by you or any of your Affiliates that in each case resulted primarily from the gross negligence or wilful misconduct of that Indemnified Person. No Indemnified Person shall be responsible or have any liability to you or any of your Affiliates or anyone else for consequential losses or damages.
7.5 Each Indemnified Person shall, to the extent legally permissible and reasonably practicable and (in the determination of such Indemnified Person) not prejudicial to the interests of such Indemnified Person, consult with you in connection with the conduct of any defence in connection with any action, claim, suit, proceeding or investigation against such Indemnified Person in respect of which such Indemnified Person seeks indemnification under paragraph 7.1 or 7.
Appears in 1 contract
OF FACILITY AGREEMENT. 6.1 Each of the parties hereto undertake to negotiate in good faith, to use all reasonable commercial efforts and to allocate sufficient resources and personnel for the purposes of such negotiations, to agree the terms of, and upon such agreement shall enter into, the Facility Agreement and the other Finance Documents (required to be entered into as a condition precedent to the initial utilisation of the Facility) in all relevant capacities, as soon as reasonably practicable following countersigning of this Commitment Letter by the Borrower and in any event by or on the date falling 9 months less 10 Business Days after the date of this Commitment Letter (or such later date as may be mutually agreed by the parties hereto (each party acting reasonably)) (the “Proposed Signing Date”), subject to:
(a) your signing and returning to us copies of the Underwriting Documents; and
(b) entry into the Acquisition Merger Agreement by the parties thereto.
6.2 The Mandated Lead Arrangers’ Arranger’s and the Underwriters’ Underwriter’s undertaking under paragraph 6.1 above shall expire on the termination or expiry of this Commitment Letter.
6.3 The Intercreditor Agreement and Transaction Security Documents that are required to be entered into by certain Obligors and Group Members as conditions precedent to first drawdown under the Facility Agreement shall be drafted and negotiated between each of the parties hereto in good faith and on terms consistent with the Term Sheet.
6.4 If, despite good faith negotiationnegotiation and the use of commercially reasonable efforts, we and the Borrower are not able to agree on a term of the Facility Agreement or the Intercreditor Agreement by the Proposed Signing Date, such term will, to the extent comparable with respect to the Facility, be in the form of:
(a) the current standard form Primary (Leveraged) LMA Senior Multicurrency Term and Revolving Facilities Agreement (the “LMA Precedent Facilities Agreement”) (subject to the specific terms of the Term Sheet) (including as regards the materiality, actual knowledge, grace periods, baskets, thresholds and other customary qualifications applied to the representations and warranties, undertakings, events of default and other material provisions not otherwise specified in the Term Sheet); or, as the case may be,
(b) the standard form LMA Intercreditor Agreement for Leveraged Acquisition Finance Transactions (the “LMA Precedent Intercreditor Agreement” and together with the LMA Precedent Facilities Agreement, the “LMA Precedent Finance Documents”), provided that where the relevant LMA Precedent Finance Document contains Documents contain a drafting option, is are silent on a particular point or the provisions of the relevant LMA Precedent Finance Document Documents require more than minor or technical changes in order to be incorporated into the Facility Agreement or, as the case may be, the Intercreditor Agreement, the relevant option or language shall be such option or language as is reasonably requested by the Mandated Lead Arrangers Arranger (which shall generally be the options and changes that the Mandated Lead Arranger has customarily used in the past with similarly situated borrowers as the Borrower for similar financings) or if the Mandated Lead Arrangers Arranger do not specify any option or language within 5 Business Days of the date of a written request by you (for such option or language), such option or language reasonably requested by you, provided that such option or language shall not be inconsistent with the Term Sheet or the Underwriting Documents.
7 UNDERTAKING TO PAY
7.1 You undertake to pay (or to procure payment) to each of the Indemnified Persons (as defined below) as soon as reasonably practicable, and in any event within 5 Business Days following demand, an amount equal to any liability, damages, cost, loss or expense (each, a “Loss”) (including reasonable and documented legal fees) incurred by any of the Mandated Lead Arrangers, the Underwriters, the Facility Agent, the Security Agent or any of their respective Affiliates or any of their (or their respective Affiliates’) directors, officers, employees or agents (each, an “Indemnified Person”) arising out of, in connection with or based on any action, claim, suit, investigation or proceeding (in each case, whether or not any Indemnified Person is party and including any action, claim, investigation or proceeding to preserve or enforce rights) commenced, pending or threatened in relation to any Underwriting Document, the use of proceeds of the Facility or the Acquisition (whether or not made) except to the extent that such Loss resulted primarily from (a) the gross negligence or wilful misconduct of such Indemnified Person, (b) any breach by such Indemnified Person of any term of the Underwriting Documents or any confidentiality undertaking with any Obligor or any Group Member, (c) any wilful breach by such Indemnified Person of any applicable law or (d) claims of an Indemnified Person solely against one or more other Indemnified Persons and not arising out of any act or omission by you, an Obligor, any Group Member or any Affiliate thereof.
7.2 You undertake to pay (or to procure payment) to each Indemnified Person on demand an amount equal to any cost or expense (including reasonable and documented legal fees) incurred by such Indemnified Person in connection with investigating, preparing, pursuing or defending any action, claim, suit, investigation or proceeding arising out of, in connection with or based on any of the above, whether or not any Indemnified Person is a party.
7.3 None of the Mandated Lead Arrangers or the Underwriters shall have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made under paragraph 7.1 or 7.2.
7.4 You agree that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or any of your Affiliates for or in connection with anything referred to in paragraph 7.1 except, following your agreement to the Underwriting Documents, for (a) any breach of any Underwriting Document or the Facility Agreement or (b) any such liability for losses, claims, damages or liabilities incurred by you or any of your Affiliates that in each case resulted primarily from the gross negligence or wilful misconduct of that Indemnified Person. No Indemnified Person shall be responsible or have any liability to you or any of your Affiliates or anyone else for consequential losses or damages.
7.5 Each Indemnified Person shall, to the extent legally permissible and reasonably practicable and (in the determination of such Indemnified Person) not prejudicial to the interests of such Indemnified Person, consult with you in connection with the conduct of any defence in connection with any action, claim, suit, proceeding or investigation against such Indemnified Person in respect of which such Indemnified Person seeks indemnification under paragraph 7.1 or 7.
Appears in 1 contract
Samples: Commitment Letter (Chen Xiangyu)
OF FACILITY AGREEMENT. 6.1 Each of the parties hereto undertake to negotiate in good faith, to use all reasonable commercial efforts and to allocate sufficient resources and personnel for the purposes of such negotiations, to agree the terms of, and upon such agreement shall enter into, the Facility Agreement and the other Finance Documents (required to be entered into as a condition precedent to the initial utilisation of the Facility) in all relevant capacities, as soon as reasonably practicable following countersigning of this Commitment Letter by the Borrower and in any event by or on the date falling 9 months after the date of this Commitment Letter (or such later date as may be mutually agreed by the parties hereto (each party acting reasonably)) (the “Proposed Signing Date”), subject to:
(a) your signing and returning to us copies of the Underwriting Documents; and
(b) entry into the Acquisition Agreement by the parties thereto.
6.2 The Mandated Lead Arrangers’ and the Underwriters’ undertaking under paragraph 6.1 above shall expire on the termination or expiry of this Commitment Letter.
6.3 The Intercreditor Agreement and Transaction Security Documents that are required to be entered into by certain Obligors and Group Members as conditions precedent to first drawdown under the Facility Agreement shall be drafted and negotiated between each of the parties hereto in good faith and on terms consistent with the Term Sheet.
6.4 If, despite good faith negotiation, we and the Borrower are not able to agree on a term of the Facility Agreement or the Intercreditor Agreement by the Proposed Signing Date, such term will, to the extent comparable with respect to the Facility, be in the form of:
(a) the current standard form Primary (Leveraged) LMA Senior Multicurrency Term and Revolving Facilities Agreement (the “LMA Precedent Facilities Agreement”) (subject to the specific terms of the Term Sheet); or, as the case may be,
(b) the standard form LMA Intercreditor Agreement for Leveraged Acquisition Finance Transactions (the “LMA Precedent Intercreditor Agreement” and together with the LMA Precedent Facilities Agreement, the “LMA Precedent Finance Documents”), provided that where the relevant LMA Precedent Finance Document contains a drafting option, is silent on a particular point or the provisions of the relevant LMA Precedent Finance Document require more than minor or technical changes in order to be incorporated into the Facility Agreement or, as the case may be, the Intercreditor Agreement, the relevant option or language shall be such option or language as is reasonably requested by the Mandated Lead Arrangers or if the Mandated Lead Arrangers do not specify any option or language within 5 Business Days of the date of a written request by you (for such option or language), such option or language reasonably requested by you, provided that such option or language shall not be inconsistent with the Term Sheet or the Underwriting Documents.
7 UNDERTAKING TO PAY
7.1 You undertake to pay (or to procure payment) to each of the Indemnified Persons (as defined below) as soon as reasonably practicable, and in any event within 5 Business Days following demand, an amount equal to any liability, damages, cost, loss or expense (each, a “Loss”) (including reasonable and documented legal fees) incurred by any of the Mandated Lead Arrangers, the Underwriters, the Facility Agent, the Security Agent or any of their respective Affiliates or any of their (or their respective Affiliates’) directors, officers, employees or agents (each, an “Indemnified Person”) arising out of, in connection with or based on any action, claim, suit, investigation or proceeding (in each case, whether or not any Indemnified Person is party and including any action, claim, investigation or proceeding to preserve or enforce rights) commenced, pending or threatened in relation to any Underwriting Document, the use of proceeds of the Facility or the Acquisition (whether or not made) except to the extent that such Loss resulted primarily from (a) the gross negligence or wilful misconduct of such Indemnified Person, (b) any breach by such Indemnified Person of any term of the Underwriting Documents or any confidentiality undertaking with any Obligor or any Group Member, (c) any wilful breach by such Indemnified Person of any applicable law or (d) claims of an Indemnified Person solely against one or more other Indemnified Persons and not arising out of any act or omission by you, an Obligor, any Group Member or any Affiliate thereof.
7.2 You undertake to pay (or to procure payment) to each Indemnified Person on demand an amount equal to any cost or expense (including reasonable and documented legal fees) incurred by such Indemnified Person in connection with investigating, preparing, pursuing or defending any action, claim, suit, investigation or proceeding arising out of, in connection with or based on any of the above, whether or not any Indemnified Person is a party.
7.3 None of the Mandated Lead Arrangers or the Underwriters shall have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made under paragraph 7.1 or 7.2.
7.4 You agree that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or any of your Affiliates for or in connection with anything referred to in paragraph 7.1 except, following your agreement to the Underwriting Documents, for (a) any breach of any Underwriting Document or the Facility Agreement or (b) any such liability for losses, claims, damages or liabilities incurred by you or any of your Affiliates that in each case resulted primarily from the gross negligence or wilful misconduct of that Indemnified Person. No Indemnified Person shall be responsible or have any liability to you or any of your Affiliates or anyone else for consequential losses or damages.
7.5 Each Indemnified Person shall, to the extent legally permissible and reasonably practicable and (in the determination of such Indemnified Person) not prejudicial to the interests of such Indemnified Person, consult with you in connection with the conduct of any defence in connection with any action, claim, suit, proceeding or investigation against such Indemnified Person in respect of which such Indemnified Person seeks indemnification under paragraph 7.1 or 7.
Appears in 1 contract
