Purchaser Financing. (a) Subject to the terms and conditions of this Agreement, the Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained the Debt Financing on or prior to the Closing Date on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any "flex" provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, the Financing Conditions that are within the Purchaser's control (but excluding any condition where the failure to be so satisfied is a direct result of the Company's failure to furnish information as required under Section 8.09 or the Company's or the Sellers' breach of any of their respective other obligations under this Agreement); (iv) subject to the terms of the Debt Commitment Letter and upon the satisfaction of the Financing Conditions, enforce its rights to consummate the Debt Financing or to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing under the Debt Commitment Letter; and (v) upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, including using its reasonable best efforts to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing. The Purchaser shall not permit or agree to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount), unless the representation and warranty set forth in Section 7.09(a) hereof (as though made at the time of the effectuation of such termination, amendment, modification, waiver or replacement) shall remain true and correct; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Debt Financing (or satisfaction of the Debt Financing Conditions that are in the Purchaser's control) on the Closing Date or (y) adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) the Purchaser shall not be deemed to have violated this Section 9.07 if the Purchaser shall have (A) provided prior written notice to the Representative of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 9.07 and (B) demonstrated (to the reasonable satisfaction of the Representative) that it has other funds available to it (on conditions not materially less favorable in the aggregate to the Purchaser than the Financing Conditions) that are sufficient to pay all amounts required to be paid by Purchaser pursuant to this Agreement and in connection with the transactions contemplated by this Agreement, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any "flex" provision in the Debt Commitment Letter shall constitute a breach of this provision. Purchaser shall promptly deliver to the Representative copies of any such termination, amendment, modification, waiver or replacement. In no event shall the Purchaser have any liability for breach of its covenants or agreements in this Section 9.07 if the Closing occurs. (b) Promptly after request by the Representative, the Purchaser shall inform the Representative in reasonable detail of the status of its efforts to arrange and consummate the Debt Financing. Without limiting the generality of the foregoing, the Purchaser shall give the Representative prompt notice if the Purchaser becomes aware of any breach, default, termination or repudiation by any party to the Debt Commitment Letter that could reasonably result in Purchaser not receiving the financing under the Debt Commitment Letter on the Closing Date. As soon as reasonably practicable after such notice and the date the Representative delivers the Purchaser a written request, the Purchaser shall provide information reasonably requested by the Representative relating to the circumstances referred to above.
Appears in 1 contract
Samples: Securities Purchase Agreement (NorthStar Asset Management Group Inc.)
Purchaser Financing. (a) Subject to the terms and conditions of this Agreement, the Purchaser shall use its reasonable best efforts to takearrange, obtain and consummate the Financing on the terms and conditions described in or cause contemplated by the Financing Commitments (including complying with any request exercising so-called “flex” provisions contained therein), as promptly as practicable after the date hereof (taking into account the timing of the Marketing Period), including using reasonable best efforts to be taken(i) maintain in full force and effect the Financing Commitments, (ii) satisfy on a timely basis (taking into account the timing of the Marketing Period) (or obtain the waiver of) all actions and conditions to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained funding in the Debt Financing Commitments and such definitive agreements to be entered into pursuant thereto (including by consummating the Equity Financing at or prior to the Closing) applicable to Purchaser, and (iii) negotiate and enter into definitive agreements with respect thereto on terms and conditions described in the Debt Financing Commitments (including any “flex” provisions contained therein) on or prior to the Closing Date on the (other than modifications to such terms and conditions as are acceptable to Purchaser so long as such modifications would (x) not reasonably be expected to materially delay (taking into account the expected timing of the Marketing Period) or prevent the ability of Purchaser to consummate the transactions contemplated hereby or cause the amount of the Debt Financing, when added with the funds to be provided under the Equity Financing Commitment, to be less than an amount sufficient to consummate the Transaction and (y) otherwise be permitted under the restrictions on amendments and modifications otherwise set forth in this Section 6.10). Purchaser shall, and shall cause its controlled Affiliates to, obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to Closing in Section 7.1 and Section 7.2 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing). Purchaser shall keep Seller informed on a reasonably current basis of the status of its efforts to arrange the Financing (or Alternative Financing). For the avoidance of doubt, Purchaser shall provide the Company copies of all amendments, modifications or supplements to the Debt Financing Commitments and any fee letter related to the Debt Financing Commitments (provided, that provisions in any amendment, modification or supplement to any fee letter, the fee amounts and the economic terms of market “flex” provisions that are customarily redacted in connection with transactions of this type may be redacted; provided that such redacted terms would not in any event adversely affect the availability, conditionality, enforceability or the aggregate amount of the Debt Financing) promptly upon execution thereof. In the event any portion of the Debt Financing becomes unavailable in the amounts and on the conditions (including any “flex” provisions) contemplated in the Debt Financing Commitments for any reason (A) Purchaser shall promptly notify Seller in writing and (B) Purchaser shall use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative financing from alternative financing sources (the “Alternative Financing”) in an amount, when added with the funds to be provided under the Equity Financing Commitment, sufficient to consummate the Transaction, which would (i) involve terms in material respects as favorable to Purchaser as are reasonably available in the debt markets for financing of the type set forth in the Debt Commitment Letter and Financing Commitments as of the Fee Letterdate hereof (including any “flex” provisions applicable thereto), including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute not involve any additional conditions to funding the Debt Financing Documents on terms that are not contained in the Debt Commitment Letter (including any "flex" provisions related thereto); Financing Commitments and (iii) satisfy on a timely basisnot reasonably be expected to prevent, impede or obtain a waiver of, delay the Financing Conditions that are within the Purchaser's control (but excluding any condition where the failure to be so satisfied is a direct result consummation of the Company's failure to furnish information as required under Section 8.09 or the Company's or the Sellers' breach of any of their respective other obligations under this Agreement); (iv) subject to the terms of the Debt Commitment Letter and upon the satisfaction of the Financing Conditions, enforce its rights to consummate the Debt Financing or to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing under the Debt Commitment Letter; and (v) upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, including using its reasonable best efforts to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the ClosingTransaction. The Purchaser shall provide Seller, upon reasonable written request, such information as shall be reasonably necessary to allow Seller to monitor the progress of Purchaser’s efforts to arrange the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall promptly notify Seller in writing (A) if there exists any breach, default, rescission, repudiation, cancellation, expiration or termination by any party to the Financing Commitments or any definitive agreement related thereto (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach, default, rescission, repudiation, cancellation, expiration or termination) or (B) of the receipt by Purchaser of any written notice or other written communication from any Financing Source with respect to any actual, threatened or alleged material breach, default, rescission, repudiation, cancellation or termination by any party to the Financing Commitments or any definitive document with respect thereto. Without the consent of the Company, the Purchaser shall not permit consent or agree to any terminationamendment, amendment replacement, supplement or modification to be made to, or any waiver of any provision under, the Financing Commitment or any replacement of, any of the Debt Commitment Letter definitive agreements relation to the Financing if such termination, amendment, modificationreplacement, supplement, modification or waiver or replacement (A1) reduces (or would have the effect of reducing) decreases the aggregate amount of the Debt Financing to an amount that would be less than an amount that would be required to consummate the Transaction on the Closing Date, (including by increasing the amount of fees to be paid or original issue discount), unless the representation and warranty set forth in Section 7.09(a) hereof (as though made at the time of the effectuation of such termination, amendment, modification, waiver or replacement) shall remain true and correct; or (B2) imposes new or additional conditions to the receipt of the Financing, or otherwise expands, amends or modifies any of the conditions to the receipt of Debt the Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) prevent, impede or delay or prevent the funding consummation of the Debt Financing (or satisfaction of the Debt Financing Conditions that are in the Purchaser's control) on the Closing Date transactions contemplated by this Agreement, or (y3) would be reasonably expected to adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) the Purchaser shall not be deemed to have violated this Section 9.07 if the Purchaser shall have (A) provided prior written notice to the Representative of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 9.07 and (B) demonstrated (to the reasonable satisfaction of the Representative) that it has other funds available to it (on conditions not materially less favorable in the aggregate to the Purchaser than the Financing Conditions) that are sufficient to pay all amounts required to be paid by Purchaser pursuant to this Agreement and in connection with Sources. Notwithstanding the transactions contemplated by this Agreementforegoing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any "flex" provision in Purchaser may amend, replace, supplement and/or modify the Debt Commitment Letter shall constitute a breach Financing Commitments to (a) add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Financing Commitments as of this provision. Purchaser shall promptly deliver to the Representative copies of any such terminationdate hereof, amendment, modification, waiver or replacement. In no event shall the Purchaser have any liability for breach of its covenants or agreements in this Section 9.07 if the Closing occurs.
(b) Promptly after request by amend titles, allocations and fee sharing arrangements with respect to existing and additional Financing Sources and (c) increase the Representative, the Purchaser shall inform the Representative in reasonable detail amount of the status of its efforts to arrange and consummate the Debt Financing. Without limiting Upon any amendment, supplement, modification, consent or waiver of or relating to the generality of Financing Commitments, Purchaser shall promptly provide a copy thereof to Seller and, to the extent any such amendment, supplement or modification has been made in compliance with this Section 6.10(a), the term “Financing Commitments” shall mean the Financing Commitments as so amended, replaced, supplemented or modified, including any Alternative Financing. Notwithstanding the foregoing, Purchaser acknowledges that this Agreement and the Purchaser shall give the Representative prompt notice if the Purchaser becomes aware of any breach, default, termination or repudiation by any party transactions contemplated hereby are not contingent on Purchaser’s ability to obtain the Debt Commitment Letter that could reasonably result in Purchaser not receiving the financing under the Debt Commitment Letter on the Closing Date. As soon as reasonably practicable after such notice and the date the Representative delivers the Purchaser a written request, the Purchaser shall provide information reasonably requested by the Representative relating to the circumstances referred to aboveFinancing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ingersoll Rand Inc.)
Purchaser Financing. (a) Subject to the terms and conditions of this Agreement, the 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, advisable or proper or advisable to obtain or cause funds sufficient to pay the payments required to be obtained the Debt Financing on or prior to made by Purchaser at the Closing Date pursuant to this Agreement (including the Estimated Purchase Price), including to arrange and obtain the Equity Financing on the terms and subject only to the conditions set forth expressly stated in the Debt Commitment Letter and the Fee Letter, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any "flex" provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, the Financing Conditions that are within the Purchaser's control (but excluding any condition where the failure to be so satisfied is a direct result of the Company's failure to furnish information as required under Section 8.09 or the Company's or the Sellers' breach of any of their respective other obligations under this Agreement); (iv) subject to the terms of the Debt Commitment Letter and upon the satisfaction of the Financing Conditions, enforce its rights to consummate the Debt Financing or to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing under the Debt Equity Commitment Letter; and .
(vb) upon satisfaction Without the prior written consent of the conditions set forth in the Debt Commitment LetterSeller (which shall not be unreasonably withheld, to consummate the Debt Financing at conditioned or prior to the Closingdelayed), including using its reasonable best efforts to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing. The Purchaser shall not permit any amendment, replacement, supplement or agree to any termination, amendment or other modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Equity Commitment Letter if such termination, amendment, modificationreplacement, waiver supplement or replacement other modification (Ai) reduces (or would have the effect of reducing) reduce the aggregate amount of the Debt net proceeds of the Equity Financing to be funded at the Closing below the amount necessary to fund any payments required to be made by Purchaser at the Closing pursuant to this Agreement (including by increasing the amount of fees to be paid or original issue discountEstimated Purchase Price), unless the representation and warranty set forth in Section 7.09(a(ii) hereof (as though made at the time of the effectuation of such terminationwould add any new, amendmentor would amend, modification, waiver or replacement) shall remain true and correct; or (B) imposes new or additional conditions supplement or otherwise expands, amends or modifies modify any of the conditions to the receipt funding of Debt Financingthe Equity Financing as compared to the Equity Commitment Letter as in effect on the date of this Agreement, or (iii) would amend or modify Seller’s rights as a third-party beneficiary of the rights granted to Purchaser under the Equity Commitment Letter for the purpose of seeking specific performance of Purchaser’s right to cause the Equity Financing to be funded thereunder, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Debt Financing (or satisfaction of the Debt Financing Conditions that are in the Purchaser's control) on the Closing Date or (y) adversely impact the ability of Purchaser to enforce its rights against the other parties Persons party to the Equity Commitment Letter.
(c) Prior to the Closing, in the event that Purchaser determines in its sole discretion to obtain bank debt or similar financing at the Closing for the purpose of financing the transactions contemplated hereby (“Debt Financing”), Seller shall use reasonable best efforts, and shall cause its applicable Subsidiaries to use reasonable best efforts, and each of them shall use their reasonable best efforts to cause their respective Subsidiaries engaged in the GES Business and each of their respective Representatives, to provide to Purchaser reasonable and customary cooperation that is reasonably requested by Purchaser in connection with arranging and obtaining the Debt Financing, including the following:
(i) assisting in the preparation of definitive documentation with respect to such Debt Financing, including guarantee and collateral documents and customary certificates and other customary documents (including schedules to any of the foregoing) as Purchaser may reasonably request, and otherwise facilitating the obtaining of guarantees and pledging of collateral in connection with the Debt Financing as Purchaser may reasonably request in writing;
(ii) furnishing Purchaser at least three (3) Business Days prior to the Closing Date with all documentation and other information required by any Governmental Entity with respect to the Debt Commitment Letter or Financing under applicable “know your customer” and anti-money laundering rules and regulations, in each case, that is reasonably requested by Purchaser at least ten (10) Business Days prior to the Closing Date;
(iii) furnishing to Purchaser such financial and other pertinent information regarding the GES Business as may be reasonably requested by Purchaser to the extent required by the definitive agreements documentation with respect theretoto such Debt Financing and otherwise reasonably available and customary for such Debt Financing;
(iv) participating in a reasonable number of meetings and presentations at mutually agreed upon locations (which shall be limited to teleconference or virtual meeting platforms) and during normal business hours and at mutually agreed upon times with prospective lenders and investors, due diligence sessions and sessions with the ratings agencies, in each case in connection with the Debt Financing; provided that and
(iv) to the extent required by the definitive documentation with respect to such Debt Financing, reasonably assisting Purchaser shall not be deemed to have violated this Section 9.07 if in the Purchaser shall have preparation of (A) provided prior written notice customary bank information memoranda (including the delivery of customary authorization and representation letters) and related lender presentations, which in each case shall exculpate Seller and its Subsidiaries and Affiliates with respect to any liability related to the Representative unauthorized use or misuse of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted the contents of such materials by the foregoing provisions of this Section 9.07 and recipients thereof, (B) demonstrated customary materials for rating agency presentations and (C) pro forma financial information and pro forma financial statements (it being understood that Purchaser, and not Seller or any of its Subsidiaries, Affiliates or Representatives, is 82 responsible for the preparation of such pro forma financial information and pro forma financial statements).
(d) Notwithstanding anything in Section 5.15(c) or this Agreement to the reasonable satisfaction of contrary, the Representative) that it has other funds available to it (on conditions not materially less favorable in the aggregate to the Purchaser than the Financing Conditions) that are sufficient to pay all amounts required to be paid cooperation requested by Purchaser pursuant to this Agreement Section 5.15(c) shall not (i) unreasonably interfere with the ongoing operations of Seller, any of its Subsidiaries or any of their respective Affiliates or Representatives, or (ii) require Seller, any of its Subsidiaries, any of their respective Affiliates or any of their respective Representatives to (A) pay any commitment or other similar fee or incur any other cost or expense unless subject to reimbursement by Purchaser in accordance with Section 5.15(e), (B) (1) execute, deliver or enter into, or perform any agreement, document or instrument (other than the customary authorization and representation letters contemplated above), including any definitive financing agreement, with respect to the Debt Financing, (2) have or incur any liability or obligation in connection with the transactions Debt Financing, including under any agreement, document or instrument related to the Debt Financing or (3) take or commit to taking any action (including entering into any agreement and any corporate or comparable action), in each case, other than upon the Closing but solely with respect to NewCo Entities that will become obligors in respect of the Debt Financing, (C) provide any legal opinion or other opinion of counsel or accountants’ comfort letters or any reliance letter, (D) make any representation to Purchaser, any of its Affiliates, any Debt Financing Related Party, or any other Person as a result of any such cooperation, as to the solvency of Seller, any of its Subsidiaries, any of their respective Affiliates or any of their respective Representatives, or to deliver or require to be delivered any solvency or similar certificate; provided that, if requested by Purchaser, a continuing employee of the GES Business that is an officer of an obligor in respect of the Debt Financing at the Closing (if any) shall deliver such a certificate in customary form with respect to the GES Business upon the Closing, (E) take any action that would reasonably be expected to subject any director, manager, officer, employee or other Representative of Seller, any of its Subsidiaries, any of their respective Affiliates or any of their respective Representatives to any actual or potential personal liability, (F) take any action that Seller reasonably determines in good faith could (1) jeopardize any attorney client privilege of (provided that Seller shall, and shall cause its controlled Affiliates to, use commercially reasonable efforts to provide the applicable information in a manner that will not jeopardize such privilege), (2) violate any certificate of incorporation or bylaws (or comparable documents) of, (3) violate any Law applicable to, (4) constitute a default or give rise to any right of termination, cancellation or acceleration of any right or obligation under any provision of any Contract or other instrument binding on, or (5) conflict with any confidentiality requirements applicable to (provided that Seller shall, and shall cause its controlled Affiliates to, use commercially reasonable efforts to provide the applicable information in a manner that will not conflict with such confidentiality requirements), Seller, any of its Subsidiaries, any of their respective Affiliates or any of their respective Representatives, (G) reimburse any expenses or provide any indemnities, (H) make any representation, warranty or certification that, in the good faith determination of Seller, is not true, (I) cause any condition to Closing to fail to be satisfied or otherwise result in a breach of this Agreement by Seller, (J) prepare or provide any audited financial statements related to the GES Business or (K) provide or prepare any financial or other information that is not readily available and customarily required for the arrangement of debt financings similar to such Debt Financing (and none of such financial or other information shall be required to be prepared in compliance with Regulation S-X).
(e) Notwithstanding anything in Section 5.15(c) or this Agreement to the contrary, (i) Purchaser shall promptly reimburse Seller or any of its Affiliates for all fees, costs and expenses (including attorneys’ fees) incurred by Seller, any of its Subsidiaries or any of their respective Affiliates in connection with any Debt Financing (including the cooperation contemplated by this AgreementSection 5.15(c) (any such fees, costs or expenses (including attorneys’ fees) that are not so reimbursed as of immediately prior to the Closing, the “Outstanding Financing Expenses”)), and (ii) for the avoidance Purchaser shall indemnify and hold harmless Seller, each of doubtits Subsidiaries, neither the existence nor the exercise each of their respective Affiliates and each of their respective Representatives from and against any "flex" provision and all Losses suffered or incurred by them in connection with the Debt Commitment Letter shall constitute a breach of this provision. Purchaser shall promptly deliver Financing, the arrangement thereof and/or any information utilized in connection therewith (including any Losses arising from or relating to the Representative copies actions and/or cooperation contemplated by Section 5.15(c)).
(f) Subject to Seller’s prior written consent in each instance, the logos used by Seller in connection with the GES Business may be used in connection with the Debt Financing; provided that such logos may only be used solely in a manner that is not intended to, nor reasonably likely to, harm, disparage or otherwise place in a negative light or context Seller, any of its Subsidiaries or any such terminationof their respective Affiliates or Representatives.
(g) Notwithstanding anything in this Agreement to the contrary, amendment, modification, waiver or replacement. In in no event shall the receipt by, or availability to, Purchaser have or any liability for breach of its covenants Affiliates of any funds or agreements in this Section 9.07 if financing or any other financing transaction (including the Closing occurs.
(b) Promptly after request by the Representative, the Purchaser shall inform the Representative in reasonable detail of the status of its efforts to arrange and consummate the Equity Financing or any Debt Financing. Without limiting ) be a condition to Purchaser’s obligations to effect the generality of the foregoing, the Purchaser shall give the Representative prompt notice if the Purchaser becomes aware of any breach, default, termination or repudiation by any party to the Debt Commitment Letter that could reasonably result in Purchaser not receiving the financing under the Debt Commitment Letter on the Closing Date. As soon as reasonably practicable after such notice and the date the Representative delivers the Purchaser a written request, the Purchaser shall provide information reasonably requested by the Representative relating to the circumstances referred to aboveClosing.
Appears in 1 contract
Samples: Securities and Asset Purchase Agreement (S&P Global Inc.)
Purchaser Financing. (a) Subject to the terms and conditions of this Agreement, the Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained the Debt Financing on or prior to the Closing Date on the terms and subject to the conditions set forth described in or contemplated by the Debt Financing Commitment Letter and the Fee LetterLetters, including using its reasonable best efforts to: (i) maintain in full force and effect the Financing Commitments, (ii) satisfy on or prior to the Closing Date all conditions to funding applicable to Purchaser in the Debt Commitment Letter and comply and/or the definitive agreements with its obligations thereunder; respect thereto (iithe “Debt Financing Documents” and, together with the definitive agreements for the Equity Financing, collectively, the “Financing Documents”) (including by consummating the Equity Financing at or prior to Closing), (iii) negotiate and execute enter into the Debt Financing Documents prior to the Closing Date on the terms contained and subject to the conditions described in the Debt Commitment Letter (including any "“market flex" ” provisions related theretocontained therein) or otherwise on terms that would not (A) reduce the aggregate amount of the Debt Financing below the amount necessary for Purchaser to pay the Required Funds or (B) impose new or material conditions precedent to the receipt of the Debt Financing, in the case of this clause (B); , that would reasonably be expected to delay or prevent Closing, (iiiiv) satisfy consummate the Debt Financing on or prior to the Closing Date (it being understood that it is not a condition to Closing under this Agreement for Purchaser to obtain the Debt Financing or any Alternative Financing) and (v) enforcing its rights under the Debt Financing Commitments (other than through litigation). Purchaser shall obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to Closing in Section 2.2 and Section 2.3 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing). To the extent requested by Seller from time to time, Purchaser shall keep Seller informed on a timely basisreasonably current basis of any material developments in respect of the status of the conditions precedent to the funding of, or obtain a waiver availability of, the Debt Financing Conditions that are within (or Alternative Financing), and upon reasonable request, Purchaser shall provide to Seller copies of all material documents related to the Purchaser's control Financing (but excluding or Alternative Financing) or any condition where other document related to the failure to be so satisfied is a direct result Financing (or Alternative Financing) affecting any rights or obligations of Seller or its Affiliates (if any). In the event any portion of the Company's failure to furnish information as required under Section 8.09 or the Company's or the Sellers' breach of any of their respective other obligations under this Agreement); (iv) subject to Debt Financing becomes unavailable on the terms of and conditions contemplated in the Debt Commitment Letter (after taking into account the “market flex” provisions thereof) such that the aggregate Debt Financing that is available, when taken together with the Purchaser’s existing cash on hand and upon the satisfaction aggregate amount of Equity Financing, is insufficient to satisfy the Required Funds, Purchaser shall, as promptly and practicable following the occurrence of such event, use reasonable best efforts to obtain alternative financing, including from alternative sources, that provides for financing (A) on terms that are not materially less favorable (including with respect to “market flex” provisions and conditions to the availability and funding of the Financing ConditionsDebt Financing), enforce its rights in the aggregate to consummate Purchaser than the Debt Financing or to cause the Debt Financing Sources terms and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing under the Debt Commitment Letter; and (v) upon satisfaction of the conditions set forth in the Debt Commitment LetterLetter (the “Alternative Financing”), to consummate (B) in an amount, when added with Purchaser’s existing cash on hand, the Debt Equity Financing at or prior to the Closing, including using its reasonable best efforts to cause the Debt Financing Sources Commitments and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing. The Purchaser shall not permit or agree to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount portion of the Debt Financing Commitments that are available, that is not less than the Required Funds and (including by increasing the amount of fees to be paid or original issue discount), unless the representation and warranty set forth in Section 7.09(aC) hereof which would not (as though made at the time of the effectuation of such termination, amendment, modification, waiver or replacementx) shall remain true and correct; or (B) imposes involve any new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Debt Financing, or otherwise expands, amends or modifies any other provision of funding the Debt Commitment Letter in a manner Financing that would not reasonably be expected to (x) delay or prevent the funding Closing and (y) reasonably be expected to prevent, impede or delay the consummation of the Debt Financing (or satisfaction of the Debt such Alternative Financing Conditions that are in the Purchaser's control) on the Closing Date or (y) adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) the Purchaser shall not be deemed to have violated this Section 9.07 if the Purchaser shall have (A) provided prior written notice to the Representative of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 9.07 and (B) demonstrated (to the reasonable satisfaction of the Representative) that it has other funds available to it (on conditions not materially less favorable in the aggregate to the Purchaser than the Financing Conditions) that are sufficient to pay all amounts required to be paid by Purchaser pursuant to this Agreement and in connection with the transactions Transactions contemplated by this Agreement, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any "flex" provision in the Debt Commitment Letter shall constitute a breach of this provision. Purchaser shall promptly deliver to the Representative copies of any such termination, amendment, modification, waiver or replacement. In no event shall the Purchaser have any liability for breach of its covenants or agreements in this Section 9.07 if the Closing occurs.
(b) Promptly after request by the Representative, the Purchaser shall inform the Representative in reasonable detail of the status of its efforts to arrange and consummate the Debt Financing. Without limiting the generality of the foregoing, the Purchaser shall give the Representative prompt notice reasonably promptly notify Seller in writing (i) if the Purchaser becomes aware of there exists any material breach, default, legal repudiation, cancellation or termination or repudiation by any party to the Debt any Financing Commitment Letter that could of which the Purchaser becomes aware, which material breach, default, legal repudiation, cancellation or termination would reasonably result in be expected to adversely affect the conditions to, availability of or amount of the applicable Financing, (ii) of the receipt by Purchaser not receiving of any written notice or other written communication from the financing under Sponsor or any Debt Financing Source with respect to any actual breach, default, cancellation or termination by such Sponsor, the Debt parties to the Equity Commitment Letter or any Debt Financing Source or (iii) if for any reason Purchaser or Sponsors believes in good faith that there is a reasonable possibility that all or any portion of the Financing will be unavailable on the Closing Date. As soon as reasonably practicable after such notice and the date the Representative delivers the Purchaser a written request, the Purchaser shall provide information reasonably requested by the Representative relating to the circumstances referred to above.;
Appears in 1 contract
Samples: Stock Purchase Agreement (Nn Inc)
Purchaser Financing. (a) Subject to the terms and conditions of this Agreement, the Purchaser shall use its reasonable best efforts Reasonable Efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper necessary or advisable to obtain or cause to be obtained arrange and consummate the Debt Financing on or prior to the Closing Date on the terms and conditions set forth described in or contemplated by the Debt Commitment Letter and the Fee Letter, including using its reasonable best efforts to: Reasonable Efforts to (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; until the funding of the Debt Financing at the Closing, (ii) negotiate and execute satisfy (or obtain waivers to) on a timely basis all conditions to funding of the Debt Financing Documents in the Debt Commitment Letter that are within Purchaser’s control, (iii) negotiate and enter into definitive agreements with respect thereto on terms contained and conditions described in the Debt Commitment Letter (including any "flex" provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, the Financing Conditions that are within the Purchaser's control (but excluding any condition where the failure to be so satisfied is a direct result of the Company's failure to furnish information as required under Section 8.09 or the Company's or the Sellers' breach of any of their respective other obligations under this Agreement); (iv) subject to the terms exercise of the Debt Commitment Letter and upon the satisfaction of the Financing Conditions, enforce its rights any “flex” provisions contained therein) on or prior to consummate the Debt Financing or to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing under the Debt Commitment Letter; and (viv) upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at on or prior to the Closing. To the extent requested by the Seller Group from time to time, including using its reasonable best efforts to cause Purchaser shall keep Seller informed on a reasonably current basis of the status of the Debt Financing.
(b) In the event any portion of the Debt Financing Sources becomes unavailable (after giving effect to any other equity and/or debt financing that may then be available to cover such unavailable amount) on the terms and conditions (including any “flex” provisions) contemplated in the Debt Commitment Letter for any reason and such amount is required by Purchaser to consummate the transactions contemplated hereby and pay all related fees and expenses required to be paid by Purchaser, in each case at the Closing, Purchaser shall promptly notify Seller Group in writing and use its Reasonable Efforts to arrange to obtain alternative financing from alternative or the same sources on terms not materially less favorable taken as a whole to Purchaser (as determined in good faith by Purchaser) than those contained in the Debt Commitment Letter in an amount, when added with Purchaser’s other financial resources, sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event (the “Alternative Financing”) and the provisions of this Section 4.10 shall be applicable to the Alternative Financing, and, for the purposes of this Agreement (other persons committing than Section 3.5), all references to fund the “Debt Financing” shall be deemed to include such Alternative Financing, all references to the “Debt Commitment Letter,” or the “Fee Letter” shall include the applicable documents for the Alternative Financing and all references to “Debt Financing Sources” shall include the applicable parties providing any Alternative Financing. It is understood and agreed that in no event will the commercially reasonable efforts of Purchaser be deemed or construed to require the Purchaser to pay any fees materially in excess of those contemplated by the Debt Commitment Letter or the Fee Letter (including “flex” provisions set forth therein) as in effect on the date of this Agreement, or agree to any “flex” provision less favorable to Purchaser than the “flex” provisions contained in the Fee Letter as in effect on the date of this Agreement (in either case, whether to secure waiver of any conditions contained therein or otherwise). Without limiting the generality of the foregoing, Purchaser shall promptly notify the Seller Group in writing (A) if Purchaser becomes aware of the existence of any material breach, default, repudiation, cancellation or termination by any party to the Debt Commitment Letter, in each case that would materially delay or prevent the Closing or result in insufficient financing for Purchaser to consummate the transactions contemplated hereby and pay all related fees and expenses required to be paid by Purchaser, in each case at the Closing, (B) of the receipt by Purchaser of any written notice or other written communication from any Debt Financing Source with respect to any actual repudiation, cancellation or termination by any party to the Debt Commitment Letter or (C) if Purchaser reasonably expects that it will not be able to obtain all or any portion of the Debt Financing to fund on the terms or in the manner contemplated by the Debt Financing Commitment Letter (as such terms and conditions may be modified or adjusted in accordance with the terms thereof and within the limits of the “flex” provisions therein) and such amount is required by Purchaser to consummate the transactions contemplated hereby and pay all related fees and expenses required to be paid by Purchaser, in each case at the Closing. The As soon as reasonably practicable, Purchaser shall provide any information reasonably requested by Seller relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall not permit (without the prior written consent of the Seller Group) consent or agree to any terminationamendment, amendment replacement, supplement or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such termination, amendment, modificationreplacement, supplement, modification or waiver or replacement (Aw) reduces (or would have the effect of reducing) decreases the aggregate amount of the Debt Financing (including by increasing except to the extent there is a corresponding increase in an Alternative Financing or other financing) to an amount of fees that would be less than an amount that would be required to be paid or original issue discount), unless consummate the representation and warranty set forth in Section 7.09(a) hereof (as though made transactions hereunder at the time of the effectuation of such termination, amendment, modification, waiver or replacement) shall remain true and correct; Closing or (Bx) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (xi) materially delay or prevent the Closing, or (ii) make the funding of any portion of the Debt Financing (or satisfaction of any condition to obtaining any portion of the Debt Financing) materially less likely to occur. Upon any amendment, supplement or modification of the Debt Commitment Letter, Purchaser shall provide a copy thereof to Seller Group and the term “Debt Financing” as used herein shall mean the Debt Financing Conditions that are in as so amended, replaced, supplemented or modified. Notwithstanding the Purchaser's controlforegoing, compliance by Purchaser with this Section 4.10(b) on the Closing Date or (y) adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) the Purchaser shall not be deemed relieve Purchaser of its obligation to have violated this Section 9.07 if the Purchaser shall have (A) provided prior written notice to the Representative of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 9.07 and (B) demonstrated (to the reasonable satisfaction of the Representative) that it has other funds available to it (on conditions not materially less favorable in the aggregate to the Purchaser than the Financing Conditions) that are sufficient to pay all amounts required to be paid by Purchaser pursuant to this Agreement and in connection with consummate the transactions contemplated by this AgreementAgreement whether or not the Debt Financing is available, and (ii) for Purchaser acknowledges that this Agreement and the avoidance of doubt, neither the existence nor the exercise of any "flex" provision in transactions contemplated hereby are not contingent on Purchaser’s ability to obtain the Debt Commitment Letter shall constitute a breach of this provision. Purchaser shall promptly deliver Financing (or any Alternative Financing) or any specific term with respect to the Representative copies of any such termination, amendment, modification, waiver or replacement. In no event shall the Purchaser have any liability for breach of its covenants or agreements in this Section 9.07 if the Closing occursfinancing.
(b) Promptly after request by the Representative, the Purchaser shall inform the Representative in reasonable detail of the status of its efforts to arrange and consummate the Debt Financing. Without limiting the generality of the foregoing, the Purchaser shall give the Representative prompt notice if the Purchaser becomes aware of any breach, default, termination or repudiation by any party to the Debt Commitment Letter that could reasonably result in Purchaser not receiving the financing under the Debt Commitment Letter on the Closing Date. As soon as reasonably practicable after such notice and the date the Representative delivers the Purchaser a written request, the Purchaser shall provide information reasonably requested by the Representative relating to the circumstances referred to above.
Appears in 1 contract
Samples: Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Purchaser Financing. (a) Subject to the terms and conditions of this Agreement, the The Purchaser shall use its reasonable best efforts to take, or and cause to be taken, all actions and to do, or and to cause to be done, all things necessary, proper proper, or advisable to arrange, consummate and obtain or cause to be obtained (i) the Debt Equity Financing on or prior to the Closing Date on the terms and conditions set forth described in the Equity Commitment Letter and (ii) the Debt Financing on the terms and conditions described in the Credit Agreement, in each case, on the Closing Date, including (A) using reasonable best efforts to comply with and maintain in full force and effect the Equity Commitment Letter and the Fee LetterCredit Agreement, including (B) using its reasonable best efforts to: (i) maintain in effect to timely negotiate and enter into any additional definitive agreements with respect to the Debt Financing on terms and conditions contemplated by the Credit Agreement (any such agreements, collectively with the Credit Agreement, the “Financing Definitive Agreements”), (C) satisfying or causing to be waived on a timely basis (and, in any event, on or prior to Closing) all conditions to funding the Financing that are applicable to the Purchaser in such Equity Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any "flex" provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, the Financing Conditions Definitive Agreements that are within the Purchaser's control ’s control, (but excluding any condition where the failure to be so satisfied is a direct result of the Company's failure to furnish information as required under Section 8.09 or the Company's or the Sellers' breach of any of their respective other obligations under this Agreement); (ivD) subject to the terms of the Debt Commitment Letter and upon the satisfaction of the Financing Conditions, enforce its rights using reasonable best efforts to consummate the Debt Financing or to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing under the Debt Commitment Letter; and (v) upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, including using its reasonable best efforts to cause (E) enforcing the Debt Financing Sources Purchaser’s rights under the Equity Commitment Letter and the Credit Agreement, and (F) if the conditions set forth in Section 2.03 and Section 2.04 have been satisfied or waived (other persons committing than those conditions that by their nature are to fund be satisfied or waived at the Debt Financing Closing, but subject to fund the Debt satisfaction or waiver of such conditions at the Closing), consummating the Financing at the Closing. The Purchaser shall not permit amend, amend and restate, replace, supplement, or agree to otherwise modify or waive any terminationof its rights under the Equity Commitment Letter or any Financing Definitive Agreement or substitute other debt or equity financing for all or any portion of the Debt Financing from the same or alternative financing sources; provided that the Purchaser may amend, amendment amend and restate, replace, supplement, or otherwise modify or waive any of its rights under, the Financing Definitive Agreements, so long as any such amendment, replacement, supplement, or other modification to be made to, or any waiver of any provision under, or any replacement of, any provisions of such Financing Definitive Agreements shall not (i) permit the syndication of the Debt Commitment Letter if such terminationFinancing to parties that are not commercial banks and their Affiliates or the Purchaser or Affiliates of the Purchaser, amendment(ii) expand upon the conditions precedent to the funding on the Closing Date of the Debt Financing as set forth in the Credit Agreement on the date hereof or otherwise modify the Financing Definitive Agreements in a manner that would, modification, waiver or replacement (A) reduces (or would have reasonably be likely to, prevent, impede, or delay the effect Closing, including in respect of reducingthe availability of the Debt Financing, or by releasing or consenting to the termination of any Financing Definitive Agreement prior to the first to occur of Closing and the expiration of the Credit Agreement in accordance with its terms, (iii) reduce the aggregate amount of the Debt Financing or reduce the Financing Parties’ commitments under the Credit Agreement (other than as a result of an assignment of a Financing Parties’ commitment to another Financing Party) unless such reduced amount, when combined with the Equity Financing (including any increase thereto) is sufficient to satisfy the Purchaser’s obligations, contemplated by increasing this Agreement, including the amount payment of the Consideration at the Closing and payment of all fees and expenses of the Purchaser due and payable at the Closing, or (iv) affect the ability of the Purchaser to enforce its rights against the Financing Parties or the Sponsor under the Credit Agreement or the Equity Commitment Letter, respectively.
(b) Prior to the Closing, the Company and NEP shall, and shall use their reasonable best efforts to cause each of the Company’s and NEP’s respective officers, directors, managers, employees, advisors, third party consultants, and engineers and the Company’s Subsidiaries to, cooperate, in all cases at the Purchaser’s sole cost and expense upon reasonable advance notice by the Purchaser in connection with the Purchaser’s efforts to arrange, consummate, and obtain the Debt Financing (collectively the “Financing Arrangements”) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of NEP, the Company or any of the Company’s Subsidiaries), including (i) providing to the Purchaser and the Financing Parties as promptly as practicable after the date of this Agreement unaudited financial statements relating to the Assets for the fiscal year ended December 31, 2018, and, if available prior to the Closing, for the fiscal quarter ended September 30, 2019 (it being understood that such financial statements will be provided on a project basis and will not be audited or reviewed by any independent accounting firm), (ii) participating, and causing appropriate senior management personnel of NEP or the Company to participate, in meetings and telephone calls with a reasonable number of prospective lenders under the Debt Financing in connection with the syndication thereof upon reasonable notice and at a time and location to be paid mutually agreed, (iii) reasonably cooperating with the due diligence efforts of the lenders that are parties to the Credit Agreement, as such due diligence relates to the Company, its Subsidiaries, the Assets, or original issue discountNEP; (iv) obtaining the consents and authorizations of accountants and consultants for use of their reports in any materials related to the Debt Financing; (v) reasonably cooperating in the preparation of any appropriate and customary offering memorandum, bank book, or similar documents used in connection with the syndication and marketing of the Financing Arrangements (including the delivery of customary authorizations and representation letters for any offering memorandum or bank book); (vi) having the Company acknowledge the pledge of the Class B Units and by facilitating the Financing Parties’ perfecting any security interest therein; provided that no such action shall be effective until the Closing, and (vii) at least five (5) Business Days prior to Closing (to the extent requested from the Company at least nine (9) Business Days prior to the anticipated Closing), unless providing all documentation and other information about the representation Company as is reasonably requested by the Purchaser that is required with respect to applicable “know your customer” and warranty set forth in Section 7.09(aanti-money laundering rules and regulations, including the USA PATRIOT Act and that is required under the Credit Agreement; provided that the Company and NEP shall not (A) hereof (as though made at the time be required to take any action that would or would reasonably be expected to cause any director, officer, employee or other representative of the effectuation of such terminationCompany or NEP to incur any personal liability, amendment, modification, waiver or replacement) shall remain true and correct; or (B) imposes new be required to deliver any legal opinions or additional conditions accountants’ cold comfort letters or otherwise expandsreliance letters, amends (C) be required to provide any information or modifies any of the conditions other document to the receipt of Debt Financingextent (y) the provision thereof would or would reasonably be expected to violate a confidentiality or other agreement with a third party, violate their respective Organizational Documents or any law, rule, regulation, court order, or otherwise expandsother legal restriction, amends or modifies result in a loss of attorney-client privilege or (z) such information or document constitutes attorney work product, (D) be required to (y) pay any commitment or other fee or (z) incur any expense in connection with compliance with this Section 5.04, (E) have any liability or any obligation under the Equity Commitment Letter or any Financing Definitive Agreement (or alternative financing that the Purchaser may raise in connection with the transactions contemplated by this Agreement), (F) be required to incur any other provision of liability or obligation in connection with the Debt Commitment Letter Financing (or any alternative financing that the Purchaser may raise in a manner connection with the transactions contemplated by this Agreement in accordance with clause (e) below), or (G) be required to take any action that would result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any contract to which the Company or NEP is a party, unless, in the case of clauses (D), (E), and (F), the Purchaser has agreed to reimburse, and have indemnified, the Company and NEP on terms reasonably acceptable to the Company and NEP with respect to such expenses.
(c) If requested by the Purchaser or any of its Affiliates, following the Closing and the exercise of the Call Option, the Company and NEP will provide the following cooperation: (i) in connection with the Purchaser entering into any Qualifying Financing, providing such cooperation and assistance as the Purchaser or its Affiliates may reasonably request (including, without limitation, (A) entering into one or more “issuer agreements” following the date hereof, in each case, in form and substance agreed to by NEP, the Purchaser and the lenders party thereto, solely to the extent required in connection with (1) a refinancing of the Qualifying Financing by the Purchaser, (2) alternative financing to fund the payment of the Consideration, as contemplated by Section 5.04(e), or (3) additional or substitute financing in connection with any exercise of the Call Option, Class B COC Option, or NEP Change of Control Option in order to permit the Purchaser to repay in full the amount of Indebtedness secured by pledges of the Class B Units to be acquired pursuant to the exercise of such Call Option, as contemplated by Section 7.02, Section 7.03, or Section 7.04 of the A&R LLC Agreement, as applicable, and (B) permitting (x) delay the Purchaser to transfer, assign, and contribute to its Affiliates any Issued NEP Common Units or prevent the funding right to receive any such Issued NEP Common Units, (y) the parties to any Qualifying Financing to make any reasonable and necessary amendments to the Credit Agreement prior to a draw of any Qualifying Financing, including amendments necessary for the lenders to perfect first priority security interests in any pledged Issued NEP Common Units, and (z) the Purchaser to assign to its Affiliates its rights under the Registration Rights Agreement in accordance with the terms thereof), (ii) using commercially reasonable efforts to enable the deposit of the pledged Issued NEP Common Units in book entry form on the books of The Depository Trust Company, when eligible to do so, and (iii) if so requested by such lender or counterparty, as applicable, re-registering the pledged Issued NEP Common Units in the name of the relevant lender, counterparty, custodian or similar party to any Qualifying Financing, as securities intermediary and as record owner and only to the extent the Purchaser or its Affiliates continues to beneficially own such pledged Issued NEP Common Units.
(d) The Company and NEP hereby consent to the use of the Company’s and NEP’s logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage NEP or the Company or the reputation or goodwill of NEP or the Company.
(e) If all or any portion of the Debt Financing (or satisfaction of becomes unavailable on the Debt Financing Conditions that are terms and conditions contemplated in the Purchaser's controlCredit Agreement, the Purchaser shall (i) on immediately notify the Closing Date or Company and NEP of such unavailability and the reasons thereof, and (ii) use reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, (y) adversely impact alternative financing for any such portion from the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter same or the definitive agreements with respect thereto; provided alternative sources on terms and conditions that (i) the Purchaser shall not be deemed to have violated this Section 9.07 if the Purchaser shall have (A) provided prior written notice to the Representative of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 9.07 and (B) demonstrated (to the reasonable satisfaction of the Representative) that it has other funds available to it (on conditions are not materially less favorable in the aggregate to the Purchaser than the financing contemplated by the Credit Agreement and (z) one or more new Financing Conditions) that are Definitive Agreements with respect to such alternative financing. The alternative financing shall be sufficient to pay pay, when added with the Equity Financing, the entire amount of the Consideration on the Closing Date and all amounts required related fees and expenses of the Purchaser due and payable at the Closing. The Purchaser shall promptly provide the Company and NEP with a copy of any new Financing Definitive Agreement and any related fee letter in connection therewith. If any new Financing Definitive Agreement is obtained, (A) any reference in this Agreement to be paid the “Financing” or the “Debt Financing” shall mean the debt financing contemplated by Purchaser any such new credit agreement pursuant to the new Financing Definitive Agreements (the “New Credit Agreement”), (B) any reference in this Agreement and in connection with to “Credit Agreement” or “Financing Definitive Agreement” shall be deemed to refer to the transactions contemplated by this New Credit Agreement, and (iiC) for the avoidance of doubt, neither the existence nor the exercise of any "flex" provision reference in the Debt Commitment Letter shall constitute a breach of this provision. Purchaser shall promptly deliver Agreement to the Representative copies of any such termination, amendment, modification, waiver or replacement. In no event “Financing Parties” shall be deemed to include the Purchaser have any liability for breach of its covenants or agreements in this Section 9.07 if lender parties to the Closing occursNew Credit Agreement.
(bf) Promptly after request by the Representative, the The Purchaser shall inform (i) keep the Representative Company and NEP informed on a reasonably current basis in reasonable detail of all material activity concerning the Financing (including the status of its efforts to arrange obtain the Financing or any alternative financing pursuant to Section 5.04(e)) and consummate (ii) promptly provide the Debt FinancingCompany and NEP with copies of all executed amendments, modifications, or replacements of any Financing Definitive Agreement (it being understood that any amendments, modifications, or replacements shall only be as permitted herein), all Financing Definitive Agreements entered into after the date hereof, and such other information and documentation available to the Purchaser as shall be reasonably requested by the Company or NEP for purposes of monitoring the progress of the financing activities. Without limiting the generality of the foregoing, the Purchaser shall give promptly notify the Representative prompt notice if the Purchaser becomes aware Company and NEP (A) of any breach, breach or default (or any event or circumstance that could reasonably be expected to give rise to any breach or default, termination or repudiation ) by any party to the Financing Definitive Agreements of which the Purchaser becomes aware which could reasonably be expected to affect the conditionality, timing, availability or quantum of the Debt Commitment Letter Financing, (B) of the receipt by the Purchaser of any written notice or other written communication from any Financing Party or the Sponsor with respect to any breach (or threatened breach) or default (or any event or circumstance that could reasonably result be expected to give rise to any breach or default), or any termination or repudiation, in Purchaser not receiving each case by any party to the financing under the Debt Equity Commitment Letter or any Financing Definitive Agreements, and (C) if for any reason the Purchaser at any time believes it will not be able to obtain all or any portion of the Financing to be obtained by the Purchaser on the Closing Date. As soon as reasonably practicable after such notice and terms, in the date manner or from the Representative delivers the Purchaser a written request, the Purchaser shall provide information reasonably requested sources contemplated by the Representative relating Equity Commitment Letter or any Financing Definitive Agreements related to the circumstances referred to aboveFinancing.
Appears in 1 contract
Samples: Contribution Agreement (NextEra Energy Partners, LP)
