PIPE Financing Parent has executed Subscription Agreements with the PIPE Investors for them to purchase the PIPE Shares for an aggregate investment equal to the PIPE Financing Amount. Each of the PIPE Investors has represented that it is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) or a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act). True and complete executed copies of each Subscription Agreement has been delivered to the Company on or prior to the date hereof. Each of the Subscription Agreements (a) have been duly authorized, executed and delivered by Parent, (b) are in full force and effect and have not been withdrawn, terminated or otherwise amended or modified (and no such withdrawal, termination, amendment or modification is contemplated by Parent) and (c) constitute a legal, valid and binding obligation of Parent, enforceable against Parent, and, to the knowledge of Parent, the other parties thereto, in accordance with their terms. There are no other agreements, side letters, or arrangements between Parent and any PIPE Investor relating to any Subscription Agreement or the purchase by such PIPE Investor of securities of Parent, that could affect the obligation of the PIPE Investors to acquire their portion of the PIPE Shares as set forth in the applicable Subscription Agreement, and, as of the date hereof, Parent does not know of any facts or circumstances that may reasonably be expected to result in any of the conditions set forth in any Subscription Agreements not being satisfied, or the PIPE Investment Amount not being available to Parent, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent under any material term or condition of any Subscription Agreement and, as of the date hereof, Parent has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of closing to be satisfied by it contained in any Subscription Agreement. The Subscription Agreements contain all of the conditions precedent to the obligations of the PIPE Investors to acquire the PIPE Shares on the terms set forth therein. No fees, consideration (other than PIPE Shares) or other discounts are payable or have been agreed by Parent to any PIPE Investor in respect of its PIPE Shares to be acquired under its Subscription Agreement.
Bridge Financing The Company shall use its reasonable best efforts to take, or cause to be taken, all actions and do or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to obtain no later than October 30, 2004 a commitment letter (the “Bridge Financing Commitment Letter”) expiring no earlier than January 30, 2005, from a reputable financial institution in substantially the same form and substance as Exhibit F attached hereto, to provide financing on terms and conditions no less favorable than those described on Exhibit F attached hereto.
Cooperation with Financing The Seller shall, and shall cause its Affiliates to, at the Buyer’s cost, use commercially reasonable efforts to provide such cooperation (including to use commercially reasonable efforts to cause its Representatives to provide such cooperation) as may be reasonably requested by the Buyer or Buyer’s prospective financing sources in connection with the arrangement of the financing for the consummation of the transactions contemplated hereby (the “Financing”), including: (i) upon reasonable prior notice, making senior employees of the Seller available to (A) participate in, and assist the Buyer in the Buyer’s preparation of customary marketing materials (including providing customary authorization letters authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, non-public information regarding the Seller or its subsidiaries or their respective securities) for meetings with prospective financing sources and (B) participate in and assist the Buyer in the Buyer’s preparation of customary materials for meetings with rating agencies; (ii) providing the Buyer with such information as is reasonably available and as the Buyer’s prospective financing sources may reasonably request of Buyer in connection with the Financing, except as required by Law or to preserve any privilege from disclosure; (iii) providing customary assistance to the Buyer in the Buyer’s preparation or filing of security and collateral documents necessary in connection with such Financing; (iv) requesting releases of Encumbrances and pay-off letters in accordance with the terms hereof; and (v) furnishing the Buyer and its financing sources promptly with all documentation and other information required by Governmental Authorities in connection with the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and in each case requested by Buyer in writing no later than ten calendar days prior to the Closing Date, provided, however, that with respect to clauses (i) through (v) above, the Seller will not be required to (a) obtain corporate approval for, execute or become bound by any agreement or document, (b) deliver any certificate or legal opinion (other than delivery of customary authorization letters and representations letters in connection with the Financing), (c) provide or do anything that would result in any material disruption to the operations or management of the Business, (d) incur any expense for which Seller is not reimbursed by Buyer or (e) take any action that conflicts with or results in any violation or breach of, or default under any applicable laws or contracts binding on the Seller or the Business.
Debt Financing (a) The Company, MCK and Echo Holdco and their respective Subsidiaries shall use their reasonable best efforts to assist the Company to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letters as promptly as practicable after the date hereof, including their reasonable best efforts to (i) maintain in effect the Debt Commitment Letters, (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letters (including any flex provisions) or on other terms no less favorable to the Company, (iii) satisfy on a timely basis all conditions in the Debt Commitment Letters that are within their control and (iv) upon satisfaction of the conditions set forth in the Debt Commitment Letters, consummate the Debt Financing at or prior to the Closing; it being understood that, if any portion of the Debt Financing to be provided as contemplated by the Debt Commitment Letters pursuant to a public offering, private offering under Rule 144A or otherwise has not been provided, and all conditions precedent to the Parties’ obligations hereunder shall have been satisfied or waived (other than receipt of the Debt Financing and those conditions which by their nature will not be satisfied except by actions taken at the Closing, but subject to the their satisfaction at the Closing), the Company shall draw upon the commitments under the Debt Commitment Letters to provide the bridge financing contemplated by and on the terms and conditions (including any applicable “flex” provisions) set forth in the Debt Commitment Letters. Each of the Company, MCK and Echo Holdco shall keep each other reasonably informed with respect to all material activity concerning the status of the Debt Financing contemplated by the Debt Commitment Letters and shall give each other notice of any material adverse change with respect to such Debt Financing as promptly as practicable.
Additional Financing Except as otherwise provided in this Article V, no Member shall be obligated or permitted to contribute any additional capital to the Company without the consent of the Board of Managers. No interest shall accrue on any contributions to the capital of the Company, and no Member shall have the right to withdraw or to be repaid any capital contributed by it or to receive any other payment in respect of its interest in the Company, including without limitation as a result of the withdrawal or resignation of such Member from the Company, except as specifically provided in this Agreement. The records of the Company shall be adjusted to reflect any additional contributions to the capital of the Company made pursuant to Section 5.2.
Tail Financing The Placement Agent shall be entitled to fees per Section 2.A. of this Agreement with respect to any public or private offering or other financing or capital-raising transaction of any kind (“Tail Financing”) to the extent that such Tail Financing is provided to the Company by any Investors in this Offering that the Placement Agent has introduced to the Company during the term of the Placement Agent’s engagement for this offering, if such Tail Financing is consummated at any time within the 12-month period following the Closing Date.
Future Financing The Company shall have not completed any financing prohibited by Section 4.11 unless, prior to the Company delivering the first Draw Down Notice after any such financing, the Company pays the Purchaser the sum of $100,000 as liquidated damages.
Transaction Financing The Company shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to obtain a commitment letter (the “Transaction Financing Commitment Letter”), from a reputable financial institution to provide financing for the Merger and the transactions contemplated hereby on commercially reasonable terms and conditions.
Financing (a) Parent and Buyer shall, and shall cause their respective 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, proper or advisable to arrange and obtain the proceeds of the Financing on the terms and conditions described in the Financing Commitments, including using reasonable best efforts to (i) maintain in effect the Financing and the Financing Commitments, (ii) enter into definitive financing agreements with respect to the Financing on the terms and conditions specified in the Financing Commitments (subject to any related flex provisions), so that such agreements are in effect as promptly as practicable but in any event no later than the Closing, (iii) enforce its rights under the Financing Commitments (including through litigation), (iv) consummate the Financing at the Closing on the terms and conditions (including the flex provisions) specified in the Financing Commitments, (v) satisfy all conditions (including the provision of information relating to the Buyer and its affiliates that is required to satisfy paragraphs (6) and (10) of Exhibit D to the Debt Financing Commitments) to such definitive agreements that are applicable to Buyer, Parent and its subsidiaries, and (vi) to comply with its obligations under the Financing Commitments. It is understood that it is not a condition to Closing under this Agreement for Buyer to obtain the Financing or any Alternative Financing. Buyer 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. Without limiting the generality of the foregoing, Buyer shall give the Company prompt notice (i) of any material breach or default by any party to any Financing Commitments or definitive document related to the Financing of which Buyer becomes aware; and (ii) of the receipt of any written notice or other written communication from any Financing Source with respect to any: (A) material breach, default, termination or repudiation by any party to any Financing Commitments or any definitive document related to the Financing of any provisions of the Financing Commitments or any definitive document related to the Financing or (B) material dispute or disagreement between or among any parties to any Financing Commitments or any definitive documents related to the Financing; provided, that none of Buyer, Parent or any of their affiliates shall be under any obligation to disclose any information that is subject to attorney client or similar privilege; provided, further, that Buyer shall use 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 (5) business days of the date the Company delivers to Buyer a written request, Buyer shall provide any information reasonably requested by the Company relating to any circumstances referred to in clause (i) or (ii) of the immediately preceding sentence. Prior to the Closing, Buyer and Parent shall not, and shall cause Borrower and its affiliates, not to agree to, or permit, any amendment or modification of, or waiver under, the Financing Commitments or other final documentation relating to the Financing without the prior written consent of the Company, except Parent or Borrower, as applicable, may amend, modify, supplement, restate or replace the Financing Commitments, in whole or part, if such amendment, modification, supplement, restatement or replacement (w) does not reduce the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing unless either the Debt Financing or the Equity Financing or both are increased by a corresponding amount), (x) does not impose new or additional conditions or otherwise expand the conditions to the Financing, (y) does not amend or modify any other term of the Financing in a manner that would reasonably be expected to (I) make the timely funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (II) adversely impact the ability of Buyer to enforce its rights against other parties to the Financing Commitments or the definitive agreements with respect thereto and (z) is not reasonably expected to hinder or delay the Closing. Notwithstanding anything contained in this Section 7.08 or in any other provision of this Agreement, in no event shall Buyer be required to consummate the Closing any earlier than the fifth business day following the expiration of the Marketing Period. Buyer shall deliver to the Company copies of any such amendment, modification or replacement. For purposes of this Section 7.08, references to “Financing” shall include the financing contemplated by the Financing Commitments as permitted to be amended, modified, supplemented, restated or replaced by this Section 7.08(a) and references to “Debt Financing Commitments” and “Financing Commitments” shall include any amendment, modification, restatement, supplement and replacement permitted by this Section 7.08(a).
Participation in Future Financing (a) From the date hereof until the date that is the 12 month anniversary of the Effective Date, upon any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (a “Subsequent Financing”), each Purchaser shall have the right to participate in up to an amount of the Subsequent Financing equal to 100% of the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing.
