Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)). (b) Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to: (i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter); (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and (iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing. (c) Purchaser shall promptly notify the Sellers in writing (A) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents, or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision. (d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Group’s obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by Sxxxxxx, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capital.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Civitas Resources, Inc.)
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly notify the Sellers in writing (A) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents, or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Group’s Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by SxxxxxxXxxxxxx, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capital.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Civitas Resources, Inc.)
Purchaser Financing. (a) During the period from the date of this Agreement and continuing until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, provide such cooperation and assistance to Purchaser acknowledges and agrees that obtaining financing is not a condition to any in connection with the arrangement of its obligations under this Agreement. For the avoidance of doubt, if any financingFinancing as may be reasonably requested by Purchaser, including the Debt following actions:
(i) participating in a reasonable number of meetings with (including to participate in a reasonable number of one-on-one meetings with) the Financing Sources and prospective investors in the Financing (and to cause the members of senior management and Representatives of the Company to participate in such meetings), and due diligence sessions, and cooperating reasonably with the marketing efforts of Purchaser and the Financing Sources, in connection with all or any Alternative Financing is not obtained for any reason portion of the Financing;
(ii) assisting Purchaser and the conditions set forth Financing Sources in Section 7.2 are otherwise satisfied the preparation of offering documents, business projections and pro formas, investor presentations, and other similar materials or similar documents required in connection with any of the Financing;
(iii) furnishing to Purchaser and the Financing Sources as promptly as reasonably practical and, in all cases, in a timely manner, (i) audited consolidated balance sheets and the related audited statements of income, shareholder’s equity and cash flows of the Company for the most recently completed fiscal year ended at least ninety (90) calendar days before the Closing Date and (ii) such other financial or waived pertinent information regarding the Company and its Subsidiaries as may be reasonably available to the Company, and which is (A) reasonably requested by Purchaser), Purchaser shall continue to be obligated and (B) reasonably necessary in order to consummate the transactions contemplated Financing, including in connection with the preparation of customary pro forma financial information (excluding any historical financial statements, which are addressed solely in clause (i) above);
(iv) cooperating reasonably with the Financing Sources’ customary due diligence;
(v) using commercially reasonable efforts to take such actions as are reasonably requested by this AgreementPurchaser or the Financing Sources and, subject if requested by Purchaser or the Financing Sources, the taking of corporate actions by the Company and its Subsidiaries with respect to entering into definitive documentation with respect to the terms Financing; provided, that any such corporate actions shall be contingent upon and effective as of this Agreement the Closing; and
(vi) as promptly as reasonably practical and, in all cases, in a timely manner, providing all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Section 9.2(d))the USA PATRIOT Act.
(b) Notwithstanding Section 5.10(a), (1) Purchaser and Merger Sub shall use commercially reasonable efforts to take, ensure that such requested cooperation does not unreasonably interfere with the ongoing business or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing operations of the Marketing PeriodAcquired Companies (it being understood and agreed that the Acquired Companies shall not be required to take any action that unreasonably interferes with the ongoing business or operations of the Acquired Companies); (2) the Acquired Companies shall not be required to commit to take any action that (x) is not contingent upon the Closing, all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or (y) would be effective prior to the Closing Date. In furtherance of and not in limitation or (z) would encumber any assets of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition Acquired Companies prior to the Debt Closing; (3) neither the Acquired Companies nor any of their respective Representatives shall, in connection with the Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable be required to the Debt Financing Sources and take any action that would result in a violation of applicable Law or breach of any Contract or subject it to actual or potential liability, (B) be required to pay any commitment fees or other amounts or make any other payment or incur any other liability or provide or agree to provide any indemnity prior to the Closing or otherwise be required to bear any cost or expense which is not reimbursable pursuant to Section 5.10(c) below, (C) have any liability or any obligation under any definitive agreement in respect of the Financing or any related document or other agreement or document related to the Financing, other than any such liability or obligation of the Acquired Companies following the Closing, (D) be required to incur any other liability in connection with the Financing, other than any other liability incurred by the Acquired Companies following the Closing, or (E) be required to disclose or provide any information the disclosure of which, in the aggregate reasonable judgment of the applicable Acquired Company, is restricted by Contract, applicable Law or is subject to attorney-client privilege. The Acquired Companies do not materially less favorable, taken make any representation or warranty as a whole, to any of the materials or information provided to Purchaser, so that Merger Sub or the agreements are in effect no later than the Closing Date; and
(iiiFinancing Sources pursuant to this Section 5.09(a) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closingor otherwise.
(c) Purchaser shall, promptly upon request by the Stockholders’ Representative or the Company, reimburse the Acquired Companies and/or their respective Representatives for all Reimbursable Financing Expenses. Subject to the limitations in the immediately preceding sentence, Purchaser and Merger Sub shall promptly notify indemnify and hold harmless the Sellers in writing Acquired Companies (A) prior to the Closing), the Securityholders, each of their respective Affiliates and the respective officers, directors, employees, agents, Representatives, successors and permitted assigns of any material breach of the foregoing (collectively, the “Financing Indemnitees”) against any losses or default (or liabilities such Financing Indemnitees actually incur as a result of any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party Action related to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (BFinancing. This Section 5.09(a) if and when Purchaser becomes aware that any portion shall survive the consummation of the Debt Financing contemplated by Transactions and the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of Closing and any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and shall continue until the date on which the applicable statute of limitations expire, and is intended to pay benefit, and may be enforced by, the Funding Requirements Financing Indemnitees and the provisions their respective heirs, executors, estates, personal representatives, successors and assigns who are each third party beneficiaries of this Section 6.9 5.09(a) and shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 binding on all successors and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability assigns of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents, or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provisionMerger Sub.
(d) Each of Purchaser shall jointly and severally indemnifyMerger Sub acknowledges and agrees that, defend and hold harmless other than the Company Group Membersobligations set forth in Section 5.5.10(a), their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against Acquired Companies do not have any and all Damages, liabilities responsibility for any financing that Purchaser or losses suffered Merger Sub may seek or incurred by them in connection with Sellers’ and the Company Group’s obligations under Section 6.20 and any information utilized in connection therewith or obtain in connection with the Debt Financing. Notwithstanding anything in this Agreement to the contrary, other than with respect to any actions in no event shall the Acquired Companies be in breach of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 this Agreement (i) for which any if such party uses commercially reasonable efforts in respect of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and this Section 5.09(a), (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, due to the failure to deliver any financial or other information that is not currently readily available to the Acquired Companies on the date hereof or is not otherwise prepared in the event ordinary course of such determination business of the Acquired Companies at the time required by Purchaser or Merger Sub, or (iii) due to the failure to obtain any comfort with respect to a Personto, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptlyor review of, within 30 days of written request by Sxxxxxx, reimburse Sellers any financial or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred other information by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capitalparty’s accountants.
Appears in 1 contract
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject Prior to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser Closing, the Sellers shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly notify the Sellers in writing (A) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents, or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives advisors, including attorneys and the Seller Groupfinancial and accounting advisors, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Group’s obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) Sellers to, provide to Purchaser such cooperation as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended is reasonably requested by Purchaser in connection with the defense arrangement (including marketing efforts in connection therewith) by Purchaser of the Transaction Financing (provided that such Person. requested cooperation does not unreasonably interfere with the ongoing operations of the Sellers), including (i) participating in a reasonable number of meetings, presentations, calls, drafting sessions, lender or rating agency presentations, road shows, due diligence sessions (including accounting due diligence sessions) and sessions with prospective lenders, underwriters, ratings agencies, initial purchasers and other syndication activities, as applicable, in each case at mutually agreed times, (ii) assisting in the preparation of (A) one or more offering documents, private placement memoranda and/or bank information memoranda and similar marketing documents for the Transaction Financing, including assistance in the preparation of a business description relating to the Sellers’ business to be included in offering documents contemplated by the Transaction Financing and reviewing and commenting on the draft business description, (B) materials for rating agency presentations and (C) road show materials, other marketing and disclosure documents and customary information in connection with the items in clause (A) and (B), (iii) providing documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; (iv) obtaining customary payoff letters, lien terminations and security releases to be delivered at Closing to allow for any repayment, discharge and termination of any Liens on the Purchased Assets; (v) obtaining accountants’ comfort letters at the expense of and as reasonably requested by Purchaser and accountants’ consents for use of their reports in any materials relating to the Transaction Financing (vi) providing promptly the Required Information at such time as it becomes reasonably available to, or reasonably obtainable without liability or material expense by, the Sellers, (vii) using reasonable best efforts to assist Purchaser in obtaining corporate and facilities ratings in connection with the Transaction Financing, and (viii) reasonably cooperating to permit the prospective lenders involved in the Transaction Financing to evaluate the Sellers’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and otherwise reasonably facilitating the grant of a security interest in collateral and providing related lender protections; provided that (x) none of the Sellers shall be required to pay any commitment or other similar fee, provide any security, make any representations, provide any indemnification or incur any other liability in connection with the Transaction Financing that are not contingent upon the Closing, other than obligations for which Purchaser is obligated to reimburse the Sellers, (y) none of the Sellers shall be required to deliver any financial information with respect to a fiscal month that has not yet ended, and (z) Purchaser shall promptly, within 30 days of written upon request by Sxxxxxxthe Sellers, (A) reimburse the Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable those of their accountants, consultants, legal counsel, agents and documented attorneys’ of one firm of outside counsel fees other representatives) and ratings agencies’ fees(B) indemnify and hold harmless the Sellers and their respective Affiliates and representative (including accountants, consultants, legal counsel, agents and other representatives) from and against any and all liabilities suffered or incurred by such Seller or Company Group Member any of them in connection with the arrangement of the Transaction Financing, such cooperation described or providing any information utilized in connection therewith, except for such liability to which such Person would have incurred regardless of this Section 6.20 and8.13. None of the Sellers or any of their respective representatives shall have any liability or incur any losses, damages or penalties with respect to the Transaction Financing or any marketing materials, presentations or disclosure documents in connection therewith in the event the Closing does not occur, except as would otherwise be available to Purchaser pursuant to this Agreement. The obligations of Purchaser in the foregoing clause (z) shall survive any termination of this Agreement. Any information provided to Purchaser pursuant to this Section 8.13 shall be subject to the confidentiality provisions of the Commitment Letter. Each Seller hereby consents to the use of the logos of the respective Seller in connection with the syndication or arrangement of the Transaction Financing; provided that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Sellers. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 8.13 represent the sole obligation of the Sellers and their officers, employees and advisors, including attorneys, financial and accounting advisors with respect to cooperation in connection with the arrangement of the Transaction Financing. Notwithstanding anything to the contrary contained in this Agreement, including this Section 8.13, nothing in this Section 8.13 shall require any such cooperation to the extent Purchaser does not reimburse that it would (A) require the Company Sellers or such their respective representatives, as applicable, to waive or amend any terms of this Agreement, (B) unreasonably interfere with the ongoing business or operations of the Sellers, (C) require the Sellers to take any action that will conflict with or violate, or result in a violation of, any of the provisions of the respective Seller’s operating agreement, partnership agreement or equivalent organizational or governing documents, in each case, as in effect on the date hereof, or any applicable Subsidiary for Laws or that would reasonably be expected to result in a violation or breach of, or default under, any such costs reasonable or expenses on customary restriction contained in any material Contract in any material respect, (D) result in any significant interference with the prompt and timely discharge of the duties of any of the Seller’s executive officers, or prior (E) result in any officer or director of the Sellers incurring personal liability with respect to any matters relating to the Closing Date, the Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working CapitalTransaction Financing.
Appears in 1 contract
Purchaser Financing. (a) During the period from the date of this Agreement and continuing until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, provide such cooperation and assistance to Purchaser acknowledges and agrees that obtaining financing is not a condition to any in connection with the arrangement of its obligations under this Agreement. For the avoidance of doubt, if any financingFinancing as may be reasonably requested by Purchaser, including the Debt following actions:
(i) participating in a reasonable number of meetings with (including to participate in a reasonable number of one-on-one meetings with) the Financing Sources and prospective investors in the Financing (and to cause the members of senior management and Representatives of the Company to participate in such meetings), and due diligence sessions, and cooperating reasonably with the marketing efforts of Purchaser and the Financing Sources, in connection with all or any Alternative Financing is not obtained for any reason portion of the Financing;
(ii) assisting Purchaser and the conditions set forth Financing Sources in Section 7.2 are otherwise satisfied the preparation of offering documents, business projections and pro formas, investor presentations, and other similar materials or similar documents required in connection with any of the Financing;
(iii) furnishing to Purchaser and the Financing Sources as promptly as reasonably practical and, in all cases, in a timely manner, (i) audited consolidated balance sheets and the related audited statements of income, shareholder’s equity and cash flows of the Company for the most recently completed fiscal year ended at least ninety (90) calendar days before the Closing Date and (ii) such other financial or waived pertinent information regarding the Company and its Subsidiaries as may be reasonably available to the Company, and which is (A) reasonably requested by Purchaser), Purchaser shall continue to be obligated and (B) reasonably necessary in order to consummate the transactions contemplated Financing, including in connection with the preparation of customary pro forma financial information (excluding any historical financial statements, which are addressed solely in clause (i) above);
(iv) cooperating reasonably with the Financing Sources’ customary due diligence;
(v) using commercially reasonable efforts to take such actions as are reasonably requested by this AgreementPurchaser or the Financing Sources and, subject if requested by Purchaser or the Financing Sources, the taking of corporate actions by the Company and its Subsidiaries with respect to entering into definitive documentation with respect to the terms Financing; provided, that any such corporate actions shall be contingent upon and effective as of this Agreement the Closing; and
(vi) as promptly as reasonably practical and, in all cases, in a timely manner, providing all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Section 9.2(d))the USA PATRIOT Act.
(b) Notwithstanding Section 5.10(a), (1) Purchaser and Merger Sub shall use commercially reasonable efforts to take, ensure that such requested cooperation does not unreasonably interfere with the ongoing business or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing operations of the Marketing PeriodAcquired Companies (it being understood and agreed that the Acquired Companies shall not be required to take any action that unreasonably interferes with the ongoing business or operations of the Acquired Companies); (2) the Acquired Companies shall not be required to commit to take any action that (x) is not contingent upon the Closing, all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or (y) would be effective prior to the Closing Date. In furtherance of and not in limitation or (z) would encumber any assets of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition Acquired Companies prior to the Debt Closing; (3) neither the Acquired Companies nor any of their respective Representatives shall, in connection with the Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable be required to the Debt Financing Sources and take any action that would result in a violation of applicable Law or breach of any Contract or subject it to actual or potential liability, (B) be required to pay any commitment fees or other amounts or make any other payment or incur any other liability or provide or agree to provide any indemnity prior to the Closing or otherwise be required to bear any cost or expense which is not reimbursable pursuant to Section 5.10(c) below, (C) have any liability or any obligation under any definitive agreement in respect of the Financing or any related document or other agreement or document related to the Financing, other than any such liability or obligation of the Acquired Companies following the Closing, (D) be required to incur any other liability in connection with the Financing, other than any other liability incurred by the Acquired Companies following the Closing, or (E) be required to disclose or provide any information the disclosure of which, in the aggregate reasonable judgment of the applicable Acquired Company, is restricted by Contract, applicable Law or is subject to attorney-client privilege. The Acquired Companies do not materially less favorable, taken make any representation or warranty as a whole, to any of the materials or information provided to Purchaser, so that Merger Sub or the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the ClosingFinancing Sources pursuant to this Section 5.09 or otherwise.
(c) Purchaser shall, promptly upon request by the Stockholders’ Representative or the Company, reimburse the Acquired Companies and/or their respective Representatives for all Reimbursable Financing Expenses. Subject to the limitations in the immediately preceding sentence, Purchaser and Merger Sub shall promptly notify indemnify and hold harmless the Sellers in writing Acquired Companies (A) prior to the Closing), the Securityholders, each of their respective Affiliates and the respective officers, directors, employees, agents, Representatives, successors and permitted assigns of any material breach of the foregoing (collectively, the “Financing Indemnitees”) against any losses or default (or liabilities such Financing Indemnitees actually incur as a result of any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party Action related to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion Financing. This Section 5.09 shall survive the consummation of the Debt Financing contemplated by Transactions and the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of Closing and any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and shall continue until the date on which the applicable statute of limitations expire, and is intended to pay benefit, and may be enforced by, the Funding Requirements Financing Indemnitees and the provisions their respective heirs, executors, estates, personal representatives, successors and assigns who are each third party beneficiaries of this Section 6.9 5.09 and shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 binding on all successors and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability assigns of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents, or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provisionMerger Sub.
(d) Each of Purchaser shall jointly and severally indemnifyMerger Sub acknowledges and agrees that, defend and hold harmless other than the Company Group Membersobligations set forth in Section 5.5.10(a), their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against Acquired Companies do not have any and all Damages, liabilities responsibility for any financing that Purchaser or losses suffered Merger Sub may seek or incurred by them in connection with Sellers’ and the Company Group’s obligations under Section 6.20 and any information utilized in connection therewith or obtain in connection with the Debt Financing. Notwithstanding anything in this Agreement to the contrary, other than with respect to any actions in no event shall the Acquired Companies be in breach of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 this Agreement (i) for which any if such party uses commercially reasonable efforts in respect of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and this Section 5.09, (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, due to the failure to deliver any financial or other information that is not currently readily available to the Acquired Companies on the date hereof or is not otherwise prepared in the event ordinary course of such determination business of the Acquired Companies at the time required by Purchaser or Merger Sub, or (iii) due to the failure to obtain any comfort with respect to a Personto, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptlyor review of, within 30 days of written request by Sxxxxxx, reimburse Sellers any financial or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred other information by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capitalparty’s accountants.
Appears in 1 contract
Purchaser Financing. (a) Prior to the Effective Time, the Partnership, the GP and the Corporation shall provide, and shall use their commercially reasonable efforts to cause their Agents to provide, all cooperation reasonably requested by the Purchaser acknowledges in connection with:
(i) the arrangement of the Bridge Loans contemplated by the Commitment Letter, including: (i) providing reasonable assistance with the preparation of materials for bank information memoranda and agrees that obtaining similar documents required in connection with the Bridge Loans, (ii) executing and delivering guarantee, pledge and security documents and related officer certificates or other documents as may be reasonably requested by the Bank (including certificates with respect to solvency and other customary matters for use in reports in any materials relating to the Bridge Loans) and otherwise reasonably facilitating the guaranteeing of obligations and the pledging of collateral, (iii) furnishing the Purchaser and its financing is not a condition to any of sources as promptly as reasonably practicable with available financial and other pertinent available information regarding the Corporation, the Partnership Entities and the Partnership Subsidiaries as may be reasonably requested by the Purchaser or its obligations under this Agreement. For the avoidance of doubt, if any financingfinancing sources, including information related to the Debt Financing Corporation, the Partnership Entities or the Partnership Subsidiaries required by regulatory authorities including under applicable “know your client” and anti-money laundering rules and regulations and other cooperation and assistance as may be reasonably requested by the Purchaser, (iv) permitting the prospective lenders involved in such financing to evaluate and appraise the Corporation’s, the Partnership’s and the Partnership Subsidiaries’ current assets and liabilities, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements; and (v) causing the taking of actions by the Corporation, the Partnership Entities and the Partnership Subsidiaries reasonably necessary to permit the completion of the Bridge Financing; and
(ii) the proposed public and/or private offerings by the Purchaser of approximately $423 million of debt and approximately $200 million of equity to enable the Purchaser to pay the cash consideration payable to the Partnership Unitholders and the Corporation Shareholders pursuant to the Plan of Arrangement, as an alternative to or to repay the Bridge Loans (the “Securities Offerings”), including: (i) furnishing the Purchaser as promptly as reasonably practicable with available financial and other pertinent available information regarding the Corporation, the Partnership Entities and the Partnership Subsidiaries and other cooperation and assistance as may be reasonably requested by the Purchaser, including, the relevant financial information required under applicable Securities Laws for a prospectus offering in Canada and the United States or reasonably requested by the proposed underwriters for due diligence purposes; (ii) participating in a reasonable number of roadshow meetings, presentations, due diligence sessions, drafting sessions and sessions with prospective underwriters, investors and rating agencies in connection with the Securities Offerings; (iii) assisting with the preparation of materials for rating agency presentations, information memoranda, and other documents required in connection with the Securities Offerings (including requesting any Alternative Financing is not obtained consents of accountants for use of their reports in prospectuses or in any other materials relating thereto and the delivery of customary comfort letters for prospectus offerings in Canada and the United States); and (iv) causing the taking of actions by the Corporation, the Partnership Entities and the Partnership Subsidiaries reasonably necessary to permit the completion of the Securities Offerings; provided, however, that nothing in this Section 4.11(a) shall require (i) any cooperation to the extent that it would materially and unreasonably interfere in any material respect with the business or operations of the Corporation, the Partnership Entities or the Partnership Subsidiaries; (ii) the Partnership Entities or the Corporation to make any expenditures or incur any costs unless they have first received an appropriate indemnity from the Purchaser indemnifying them for and agreeing to reimburse them for any reason such expenditures or costs; and (iii) the Partnership Entities or the Corporation to enter into, execute or deliver any guarantee, pledge, security document or other agreement unless such guarantee, pledge, security document or other agreement by its terms and conditions set forth in Section 7.2 are otherwise satisfied (does not become effective until on or waived by Purchaser), Purchaser shall continue to be obligated to consummate after the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d))Effective Time.
(b) The Corporation, the Partnership Entities and the Partnership Subsidiaries hereby consent to the reasonable use of their logos in connection with any of the financings contemplated hereby, provided that such logos are used in a manner that is not intended to harm or disparage such entities or their marks.
(c) The Purchaser shall will use commercially reasonable efforts to take, fulfill and comply with all of its obligations under the Commitment Letter and to satisfy or cause to be taken, the satisfaction of all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect of the conditions precedent to the timing funding of the Marketing Period), all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements Bridge Loans on or prior to before the Closing DateEffective Date (or such earlier date required by the Commitment Letter). In furtherance The Purchaser will notify the Partnership Entities and the Corporation promptly upon becoming aware of and not any breach or default by the Purchaser under the Commitment Letter or the failure or reasonably likely failure of any condition in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause Commitment Letter to be satisfied, on a timely basis all conditions to . The Purchaser obtaining will not terminate or amend the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly notify the Sellers in writing (A) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, Partnership Entities and the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents, or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provisionCorporation.
(d) In the event that the credit facility available to the Partnership that forms part of the Bridge Loans is drawn in whole or in part by the Partnership, the Purchaser shall jointly covenants and severally indemnify, defend agrees to provide a subordinated guarantee (subordinated to the Bridge Loan and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damagesother existing or future indebtedness of the Purchaser) of the 5.87% Senior Notes due August 15, liabilities or losses suffered or incurred 2017 and 5.97% Senior Notes due August 15, 2019 issued by them in connection with Sellers’ CPI Power (US) GP, the 5.9% Senior Notes due July 15, 2014 issued by Xxxxxx Xxxxxx LLC and the Company Group’s obligations 5.95% medium term notes due June 23, 2036 issued by the Partnership, effective as at the Effective Time and in form and substance satisfactory to the Partnership, acting reasonably.
(e) If the Purchaser determines, in its sole discretion, that any draw is required to be made by the Partnership under Section 6.20 and any information utilized the Bridge Loans in connection therewith or in connection with order to complete the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 Arrangement:
(i) for which any of the individuals identified in Partnership shall make such draw prior to the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and Effective Time;
(ii) the Plan of Arrangement shall be amended in accordance with its terms as determined by a court is contemplated in Section 4.1(e) of competent jurisdiction in a final and non-appealable judgment the Plan of Arrangement; and, in
(iii) the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by Sxxxxxx, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with cause the cooperation described in Section 6.20 and, Partnership to loan the amount so drawn to the extent Purchaser does not reimburse immediately following the Company or such applicable Subsidiary for any such costs or expenses on or acquisition of Partnership Units by the Purchaser pursuant to the Plan of Arrangement and prior to the Closing Date, the Company Group shall be deemed to have a Working Capital Asset as completion of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working CapitalArrangement.
Appears in 1 contract
Purchaser Financing. (a) During the period from the date of this Agreement and continuing until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, provide such cooperation and assistance to Purchaser acknowledges and agrees that obtaining financing is not a condition to any in connection with the arrangement of its obligations under this Agreement. For the avoidance of doubt, if any financingFinancing as may be reasonably requested by Purchaser, including the Debt following actions:
(i) participating in a reasonable number of meetings with (including to participate in a reasonable number of one-on-one meetings with) the Financing Sources and prospective investors in the Financing (and to cause the members of senior management and Representatives of the Company to participate in such meetings), and due diligence sessions, and cooperating reasonably with the marketing efforts of Purchaser and the Financing Sources, in connection with all or any Alternative Financing is not obtained for any reason portion of the Financing;
(ii) assisting Purchaser and the conditions set forth Financing Sources in Section 7.2 are otherwise satisfied the preparation of offering documents, business projections and pro formas, investor presentations, and other similar materials or similar documents required in connection with any of the Financing;
(iii) furnishing to Purchaser and the Financing Sources as promptly as reasonably practical and, in all cases, in a timely manner, (i) audited consolidated balance sheets and the related audited statements of income, shareholder’s equity and cash flows of the Company for the most recently completed fiscal year ended at least ninety (90) calendar days before the Closing Date and (ii) such other financial or waived pertinent information regarding the Company and its Subsidiaries as may be reasonably available to the Company, and which is (A) reasonably requested by Purchaser), Purchaser shall continue to be obligated and (B) reasonably necessary in order to consummate the transactions contemplated Financing, including in connection with the preparation of customary pro forma financial information (excluding any historical financial statements, which are addressed solely in clause (i) above);
(iv) cooperating reasonably with the Financing Sources’ customary due diligence;
(v) using commercially reasonable efforts to take such actions as are reasonably requested by this AgreementPurchaser or the Financing Sources and, subject if requested by Purchaser or the Financing Sources, the taking of corporate actions by the Company and its Subsidiaries with respect to entering into definitive documentation with respect to the terms Financing; provided, that any such corporate actions shall be contingent upon and effective as of this Agreement the Closing; and
(vi) as promptly as reasonably practical and, in all cases, in a timely manner, providing all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Section 9.2(d))the USA PATRIOT Act.
(b) Notwithstanding Section 5.10(a), (1) Purchaser and Merger Sub shall use commercially reasonable efforts to take, ensure that such requested cooperation does not unreasonably interfere with the ongoing business or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing operations of the Marketing PeriodAcquired Companies (it being understood and agreed that the Acquired Companies shall not be required to take any action that unreasonably interferes with the ongoing business or operations of the Acquired Companies); (2) the Acquired Companies shall not be required to commit to take any action that (x) is not contingent upon the Closing, all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or (y) would be effective prior to the Closing Date. In furtherance of and not in limitation or (z) would encumber any assets of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition Acquired Companies prior to the Debt Closing; (3) neither the Acquired Companies nor any of their respective Representatives shall, in connection with the Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable be required to the Debt Financing Sources and take any action that would result in a violation of applicable Law or breach of any Contract or subject it to actual or potential liability, (B) be required to pay any commitment fees or other amounts or make any other payment or incur any other liability or provide or agree to provide any indemnity prior to the Closing or otherwise be required to bear any cost or expense which is not reimbursable pursuant to Section 5.10(c) below, (C) have any liability or any obligation under any definitive agreement in respect of the Financing or any related document or other agreement or document related to the Financing, other than any such liability or obligation of the Acquired Companies following the Closing, (D) be required to incur any other liability in connection with the Financing, other than any other liability incurred by the Acquired Companies following the Closing, or (E) be required to disclose or provide any information the disclosure of which, in the aggregate reasonable judgment of the applicable Acquired Company, is restricted by Contract, applicable Law or is subject to attorney-client privilege. The Acquired Companies do not materially less favorable, taken make any representation or warranty as a whole, to any of the materials or information provided to Purchaser, so that Merger Sub or the agreements are in effect no later than the Closing Date; and
(iiiFinancing Sources pursuant to this Section 5.09(a) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closingor otherwise.
(c) Purchaser shall, promptly upon request by the Stockholders’ Representative or the Company, reimburse the Acquired Companies and/or their respective Representatives for all Reimbursable Financing Expenses. Subject to the limitations in the immediately preceding sentence, Purchaser and Merger Sub shall promptly notify indemnify and hold harmless the Sellers in writing Acquired Companies (A) prior to the Closing), the Securityholders, each of their respective Affiliates and the respective officers, directors, employees, agents, Representatives, successors and permitted assigns of any material breach of the foregoing (collectively, the “Financing Indemnitees”) against any losses or default (or liabilities such Financing Indemnitees actually incur as a result of any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party Action related to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (BFinancing. This Section 5.09(a) if and when Purchaser becomes aware that any portion shall survive the consummation of the Debt Financing contemplated by Transactions and the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of Closing and any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and shall continue until the date on which the applicable statute of limitations expire, and is intended to pay benefit, and may be enforced by, the Funding Requirements Financing Indemnitees and the provisions their respective heirs, executors, estates, personal representatives, successors and assigns who are each third party beneficiaries of this Section 6.9 5.09(a) and shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 binding on all successors and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability assigns of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents, or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provisionMerger Sub.
(d) Each of Purchaser shall jointly and severally indemnifyMerger Sub acknowledges and agrees that, defend and hold harmless other than the Company Group Membersobligations set forth in Section 5.5.10(a), their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against Acquired Companies do not have any and all Damages, liabilities responsibility for any financing that Purchaser or losses suffered Merger Sub may seek or incurred by them in connection with Sellers’ and the Company Group’s obligations under Section 6.20 and any information utilized in connection therewith or obtain in connection with the Debt Financing. Notwithstanding anything in this Agreement to the contrary, other than with respect to any actions in no event shall the Acquired Companies be in breach of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 this Agreement (i) for which any if such party uses commercially reasonable efforts in respect of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and this Section 5.09(a), (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, due to the failure to deliver any financial or other information that is not currently readily available to the Acquired Companies on the date hereof or is not otherwise prepared in the event ordinary course of such determination business of the Acquired Companies at the time required by Purchaser or Merger Sub, or (iii) due to the failure to obtain any comfort with respect to a Personto, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptlyor review of, within 30 days of written request by Sxxxxxx, reimburse Sellers any financial or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred other information by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capital.party’s accountants. 44
Appears in 1 contract
Samples: Merger Agreement
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For From the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms date of this Agreement until the Closing, the Control Sellers shall, and shall cause their Affiliates to, provide reasonable cooperation to Purchaser and its Affiliates in connection with the arrangement of financing (which may include debt or equity financing, but in any case for not more than $5 million in the aggregate) necessary for Purchaser to complete the Contemplated Transactions (the “Financing”), including Section 9.2(d)).
(bi) permitting direct contact, upon Purchaser’s request, between prospective lenders and appropriate officers and employees of the Wilhelmina Transferred Companies, (ii) preparing and providing all financial information reasonably requested by prospective financing sources, (iii) seeking, and making arrangements reasonably satisfactory to Purchaser shall and its financing sources with respect to, lien releases, applicable consents, landlord estoppel certificates, pay off letters and similar customary items and (iv) using its commercially reasonable efforts to cause appropriate officers and employees of the Wilhelmina Transferred Companies (A) to be available, on a customary basis and at mutually agreed times and places, to meet with prospective lenders and investors in presentations, meetings, road shows and due diligence sessions, (B) to assist with the preparation of disclosure documents in connection therewith and (C) to execute and deliver agreements, instruments and certificates of officers of Wilhelmina Transferred Companies to the extent reasonably necessary to facilitate the Financing, and to use commercially reasonable efforts to take, or cause legal counsel and accountants to be taken, all actions render legal opinions and do, or cause to be done, as promptly as reasonably practicable (giving effect comfort letters to the timing extent reasonably necessary in connection with the Financing and not otherwise reasonably available from the legal counsel and/or accountants of Purchaser (or are not reasonably acceptable to Purchaser’s financing sources); provided that none of the Marketing Period), all things necessary Wilhelmina Transferred Companies or any of their Subsidiaries shall be required to consummate pay any commitment or other similar fee or incur any liability or obligation in connection with the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, other than any such fee or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing other obligation contingent on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly notify the Sellers in writing (A) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents, or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Group’s obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days upon request of written request by Sxxxxxxthe Control Sellers, reimburse Sellers or any Company Group Members the Wilhelmina Transferred Companies for all reasonable and documented out-of-pocket costs (costs, including reasonable fees charged by legal counsel and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) accountants incurred by such Seller the Wilhelmina Transferred Companies or Company Group Member any of the Subsidiaries in connection with its cooperation with arranging the cooperation described in Section 6.20 and, Financing. Notwithstanding anything to the extent Purchaser does contrary, the terms of the Financing (including but not reimburse limited to the Company amount of any equity or such applicable Subsidiary for any such costs or expenses on debt financing raised at or prior to Closing and the Closing Datepricing thereof), and the Company Group sources thereof, shall be deemed determined by Purchaser in its sole discretion; provided that no equity or instruments convertible, exercisable or exchangeable for equity shall be on terms more favorable to have a Working Capital Asset as the financing source than the NCEH Book Value Per Share; provided further that the consent of Control Sellers (which may be withheld in their sole discretion) shall be required in the event that personal guarantees, stock pledges or other security or similar commitments are required of the Effective Time Control Sellers in the amount of connection with such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capitalfinancing.
Appears in 1 contract
Samples: Merger Agreement (New Century Equity Holdings Corp)
Purchaser Financing. (ai) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject Subject to the terms of this Agreement (including Section 9.2(d)).
(b) Agreement, Purchaser shall use commercially its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary or advisable to arrange and obtain the Financing on the terms and conditions described in the Commitment Letters or on other terms that would not reduce the amount of proceeds of the Financing below the amount necessary for Purchaser to consummate the Debt Financing Contemplated Transactions on the terms contemplated hereby and would not reasonably be expected to delay the Closing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, make funding materially less likely to fund occur on the Funding Requirements Closing Date (including the exercise of so-called “flex” provisions) on or prior before the Closing (including using reasonable best efforts to (A) satisfy (or obtain the waiver of) all conditions and covenants applicable to Purchaser in the Commitment Letters and such definitive agreements to be entered into pursuant to the Closing Date. In furtherance Commitment Letters; provided that with respect to any conditions or covenants that are not within the control of and not in limitation of Purchaser, the foregoing, Purchaser shall only be obligated to use commercially reasonable efforts to:
efforts, and (i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(iiB) negotiate and enter into definitive agreements with respect to the Debt Financing on consistent with the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by contained in the Debt Commitment Letter or on other terms no less favorable, in the aggregate, to Purchaser than the terms and conditions (including any related economic the “flex” provisions) contemplated by the Commitment Letters (or on other terms that would not reasonably be expected to delay the Closing or make funding materially less likely to occur on the Closing Date), other than, in each case, (i) a waiver of any closing conditions by lender(s) or their agent or (ii) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not related executed the Commitment Letters as of the date hereof or to conditionalityreassign titles to such parties who had executed the Commitment Letters as of the date hereof. At the written request of the Company, Purchaser shall provide the Company with such information and material documentation as shall be reasonably requested by the Company. It is understood and agreed that “reasonable best efforts” as used in this Section 4.6 shall not require Purchaser to obtain alternative financing if such financing, in Purchaser’s reasonable business judgment, is less favorable in the aggregate (including with respect to fees payable by Purchaser or its Affiliates thereunder) that are to Purchaser than the Financing contemplated in the Commitment Letters (Aincluding with respect to any “flex” provisions).
(ii) reasonably acceptable Subject to the Debt terms and conditions of the Commitment Letters, Purchaser shall use its reasonable best efforts to cause the Financing Sources and (B) the other Persons providing the Financing to provide the Financing on the Closing Date. In the event any portion of the Financing contemplated in the aggregate not materially Commitment Letters becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Commitment Letters, Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to arrange to obtain alternative debt financing from alternative sources in an amount sufficient to consummate the Contemplated Transactions and on terms and conditions no less favorable, taken as a wholein the aggregate, to PurchaserPurchaser than those in the Commitment Letters as promptly as practicable following the occurrence of such event, so provided that in no event shall Purchaser or any of its Affiliates be required to commence any litigation or other legal proceeding against any of its Financing Sources in connection with the agreements are Commitment Letters, the Financing (including any alternative financing), this Agreement or the transactions contemplated hereby. Purchaser shall deliver to Sellers true and complete copies of all alternate commitment letters and other Contracts entered into in effect no later than connection with such alternate Financing (subject to customary redactions of fees in the Closing Date; andcase of any fee letters) promptly after the execution thereof.
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly (and in any event, within two (2) Business Days) notify the Sellers Company in writing (Ai) of any material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would could reasonably be expected to result in a give rise to any material breach or material default) by Purchaser under the Commitment Letters or any definitive agreements related thereto or, to the Knowledge of Purchaser, any other party to the Debt any Commitment Letter or other Debt Document of which Purchaser becomes awaredefinitive agreement related thereto, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (Cii) of the receipt by Purchaser or any of its Representatives of any written notice or other written communication from any Person with respect to any (iA) actual or potential material breach, default, termination or repudiation by any party to the Debt any Commitment Letter or other Debt Document any definitive agreement related thereto (including any proposal by any Financing Source to withdraw, terminate, reduce the amount of financing or delay the timing of financing contemplated by the Commitment Letters) or (iiB) material dispute or material disagreement between or among any parties to the Debt any Commitment Letter or other Debt Document any definitive agreement related thereto, in the case of clauses (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt DocumentsA) and (DB) of any expiration above, that could reasonably be expected to result in Purchaser not receiving, or termination delaying the receipt of, the proceeds of the Debt Commitment Letter Financing necessary for Purchaser to consummate the Contemplated Transactions on terms contemplated hereby on the Closing Date, and (iii) if at any time Purchaser believes in good faith that it will not obtain all or other Debt Document. If any material portion of the Debt Financing becomes unavailable on necessary for the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion funding of the Debt Financing, to consummate Transactions on or before the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall Closing.
(1iv) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without Without the prior written consent of the SellersCompany (not to be unreasonably withheld, delayed or conditioned), Purchaser shall not consent to any material amendment or modification to be made to(other than pursuant to the exercise of so-called “flex” provisions), or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt any Commitment Letter if such amendment, modification or waiver would impose new or additional conditions precedent or change the conditions precedent set forth therein (including the Fee Letter) unless such expanded or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) new conditions precedent would not reasonably be expected to (x) prevent, impair or materially delay the Closing), reasonably be expected to materially delay the timing of the Closing, reduce the aggregate cash amount of the Debt Financing funding commitments thereunder (including by changing below the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required necessary for Purchaser to consummate the transactions Contemplated Transactions on the terms contemplated hereby at the Closing or (y) impose any new or additional conditionhereby, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) materially and adversely impact the ability of Purchaser to enforce its rights against any other party to under the Debt Commitment Letter Letters or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at Contemplated Transactions (collectively, the Closing; provided“Restricted Commitment Letter Amendments”) (for the avoidance of doubt, that notwithstanding anything it is understood that, subject to the contrary hereinlimitations set forth in this Section 4.6 and in the Commitment Letters, no consent from the Sellers or Purchaser may amend any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding add or replace lenders, lead arrangers, bookrunners, syndication agents, agents or similar entities that have not executed entities). For purposes of this Agreement, references to either “Commitment Letter” and to the Debt Commitment Letter as “Financing” (in each case, other than references to such terms for purposes of representations made at the date of this Agreement (including Agreement) shall include such document and such financing contemplated thereby as permitted or required by this Section 4.6 to be amended, modified, replaced or waived, in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, each case from and against any and all Damagesafter such amendment, liabilities modification, replacement or losses suffered or incurred by them in connection with Sellers’ and the Company Group’s obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by Sxxxxxx, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capitalwaiver.
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