Reasonable Efforts/Cooperation Each of the Parties hereto will use its commercially reasonable efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations to consummate the transactions contemplated by this Agreement, including adopting plans or plan amendments. Each of the Parties hereto shall cooperate fully on any issue relating to the transactions contemplated by this Agreement for which the other Party seeks a determination letter or private letter ruling from the IRS, an advisory opinion from the DOL or any other filing, consent or approval with respect to or by a Governmental Authority.
Reasonable Efforts; Notification (a) Other than taking any action permitted by Section 5.4(d) and subject to the limitations set forth in Section 5.9, upon the terms and subject to the conditions set forth in this Agreement each of the parties agrees to use all commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the transactions contemplated hereby, including the following: (i) the taking of all reasonable acts necessary to cause the conditions precedent set forth in Article VI to be satisfied, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to avoid any suit, claim, action, investigation or proceeding by any Governmental Entity, (iii) the obtaining of all consents, approvals or waivers from third parties required as a result of the transactions contemplated in this Agreement, (iv) the defending of any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (v) the execution or delivery of any additional instruments reasonably necessary to consummate the Merger and the transactions contemplated hereby, and to fully carry out the purposes of, this Agreement. In connection with and without limiting the foregoing, Nova and the Nova Board shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger or this Agreement, use all commercially reasonable efforts to ensure that the Merger may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger and this Agreement.
(b) Nova shall give prompt notice to Saturn upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate in any material respect, or of any failure of Nova to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, in each case, such that the conditions set forth in Article VI would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. Nova will notify Saturn of any actions, suits, claims, investigations or proceedings commenced or threatened in writing against, relating to or involving or otherwise affecting such party or any of its Subsidiaries that relate to the consummation of the Merger.
(c) Saturn shall give prompt notice to Nova upon becoming aware that any representation or warranty made by it contained in this Agreement has become untrue or inaccurate in any material respect, or of any failure of Saturn to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, in each case, such that the conditions set forth in Article VI would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. Saturn will notify Nova of any actions, suits, claims, investigations or proceedings commenced or threatened in writing against, relating to or involving or otherwise affecting such party or any of its Subsidiaries that relate to the consummation of the Merger.
Regulatory Filings; Reasonable Efforts (a) As promptly as practicable after the date hereof, each of Parent, Sub and the Company shall make all filings, notices, petitions, statements, registrations, submissions of information, application or submission of other documents required under applicable Law by any Governmental Entity of competent jurisdiction in connection with the Offer, the Merger and the other transactions contemplated hereby, including, without limitation: (i) Notification and Report Forms with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice as required by the HSR Act, (ii) filings required by the merger notification or control Laws of the foreign jurisdictions listed on Annex I-A, and (iii) any filings required under the Securities Act, the Exchange Act, any applicable state or securities or “blue sky” Laws and the securities Laws of any foreign country, or any other applicable Laws or rules and regulations of any Governmental Entity relating to the Offer and the Merger. Each of Parent and the Company will cause all documents that it is responsible for filing with any Governmental Entity under this Section 6.6 to comply in all material respects with all applicable Laws of any Governmental Entity.
(b) Each of Parent, Sub, and the Company shall promptly supply the other with any information which may be reasonably required in order to effectuate any filings or application pursuant to this Section 6.6.
(c) Each of Parent, Sub and the Company will notify the others promptly upon the receipt of: (i) any comments from any officials of any Governmental Entity in connection with any filings made pursuant hereto and (ii) any request by any officials of any Governmental Entity for amendments or supplements to any filings made pursuant to, or information provided to comply in all material respects with, any applicable Laws and rules and regulations of any Governmental Entity. Whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to Section 6.6(a), Parent, Sub or the Company, as the case may be, will promptly inform the others of such occurrence and cooperate in filing with the applicable Governmental Entity such amendment or supplement.
(d) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated hereby, including complying in all material respects with all applicable Laws and with all rules and regulations of any Governmental Entity and using reasonable best efforts to accomplish the following: (i) the causing of all the conditions set forth in SECTION 7 and in Annex I hereto to be satisfied and to consummate and make effective the Offer, the Merger and the other transactions contemplated hereby, (ii) the obtaining of all reasonably requested actions or nonactions, waivers, consents, clearances, approvals, orders and authorizations from Governmental Entities and the making of all reasonably requested registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any), (iii) the obtaining of all reasonably requested consents, approvals or waivers from third parties, (iv) the defending of any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (v) the execution or delivery of any additional instruments necessary to consummate the transactions contemplated hereby, and to carry out fully the purposes of, this Agreement. In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Offer, the Merger, this Agreement or any of the other transactions contemplated hereby, use all reasonable best efforts to ensure that the Offer, the Merger and the other transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Offer, the Merger, this Agreement and the other transactions contemplated hereby. The Company will use reasonable best efforts to obtain any consent, approval, or waiver with respect to the Material Contracts such that no party will have a reasonable basis to maintain that the representations and warranties in Section 3.11 and clause “(ii)” of Section 3.19 are not true and correct. Nothing in this Agreement shall require Parent, the Surviving Corporation or any other subsidiary of Parent to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or agree or proffer to sell, hold separate, license or otherwise dispose of any assets or conduct their business in a specified manner, or permit or agree to the sale, holding separate, licensing or other disposition of, any assets of Parent, the Surviving Corporation or any other subsidiary of Parent or the Company, whether as a condition to obtaining any approval from, or to avoid potential litigation or administrative action by, a Governmental Entity or any other person or for any other reason.
ACCESS AND COOPERATION; DUE DILIGENCE (i) Between the date of this Agreement and the Closing Date, the COMPANY will afford to the officers and authorized representatives of URSI and the Founding Companies other than the COMPANY access to all of the COMPANY's (including the COMPANY's Subsidiaries) key employees, sites, properties, books and records and will furnish URSI with such additional financial and operating data and other information as to the business and properties of the COMPANY (including the COMPANY's Subsidiaries) as URSI or the Founding Companies other than the COMPANY may from time to time reasonably request. The COMPANY will cooperate with URSI and the Founding Companies other than the COMPANY, its representatives, auditors and counsel in the preparation of any documents or other material which may be required in connection with any documents or materials required by this Agreement. URSI, the STOCKHOLDERS and the COMPANY will treat all information obtained in connection with the negotiation and performance of this Agreement or the due diligence investigations conducted with respect to the Founding Companies other than the COMPANY as confidential in accordance with the provisions of Section 14 hereof. In addition, URSI will cause each of the Founding Companies other than the COMPANY to enter into a provision similar to this Section 7.1 requiring each such Founding Company to keep confidential any information obtained by such Founding Company.
(ii) Between the date of this Agreement and the Closing Date, URSI will afford to the officers and authorized representatives of the COMPANY access to all of URSI's sites, properties, books and records and will furnish the COMPANY with such additional financial and operating data and other information as to the business and properties of URSI as the COMPANY may from time to time reasonably request. URSI will cooperate with the COMPANY, its representatives, engineers, auditors and counsel in the preparation of any documents or other material which may be required in connection with any documents or materials required by this Agreement. The COMPANY will cause all information obtained in connection with the negotiation and performance of this Agreement to be treated as confidential in accordance with the provisions of Section 14 hereof.
Reasonable Efforts Each of the Company and Parent shall, and shall cause their respective controlled affiliates to, cooperate in good faith with all Governmental Entities and use their reasonable efforts to (A) cause the expiration of the notice periods under the HSR Act and any other Laws with respect to the Merger and the transactions contemplated hereby as promptly as is reasonably practicable after the execution of this Agreement, (B) resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Merger and the transactions contemplated hereby and (C) undertake any reasonable actions required to lawfully complete the Merger and the transactions contemplated hereby. Except where prohibited by applicable Legal Requirements, Parent shall be entitled to lead any proceedings or negotiations with any Governmental Entity related to the foregoing, provided that it shall afford the Company the opportunity to participate therein. Notwithstanding the foregoing, neither the Company nor Parent shall be required to take (and, for the avoidance of doubt, the Company shall not take without Parent’s consent) any action which (x) is reasonably likely to have a material adverse effect on the condition (financial or otherwise), business, assets, liabilities or results of operations of either Parent (or any of its subsidiaries), the Company (or any of its subsidiaries) or the Surviving Corporation, taken individually or in the aggregate, (any such action, a “Burdensome Condition”) or (y) is not conditioned on the consummation of the Merger. Notwithstanding anything in this Agreement to the Contrary, neither the Company nor Parent shall be required to contest through litigation any objection, action or proceeding by any Governmental Entity.
Additional Agreements; Reasonable Efforts Subject to the terms and conditions herein provided, each of the parties hereto agrees to use all reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, (i) cooperating in the preparation and filing of the 8-K, any filings that may be required under the HSR Act, and any amendments to any thereof; (ii) obtaining consents of all third parties and Governmental Entities necessary, proper or advisable for the consummation of the transactions contemplated by this Agreement; (iii) contesting any legal proceeding relating to the Merger and (iv) the execution of any additional instruments necessary to consummate the transactions contemplated hereby. Subject to the terms and conditions of this Agreement, KFI and CALIPSO agree to use all reasonable efforts to cause the Effective Time to occur as soon as practicable after the stockholder votes with respect to the Merger. In case at any time after the Effective Time any further action is necessary to carry out the purposes of this Agreement, the proper officers and directors of each party hereto shall take all such necessary action.
Reasonable Cooperation By accepting the Restricted Stock, the Employee acknowledges and agrees that, during the course of the Employee’s employment with the Company, the Employee will be involved in, and may have information or knowledge of, business matters that may become the subject of legal action, including threatened litigation, investigations, administrative proceedings, hearings or disputes. As such, upon reasonable notice, both during the Employee’s employment with the Company and thereafter, the Employee agrees to cooperate fully with any investigation into, defense or prosecution of, or other involvement in, claims to which the Employee has personal and relevant knowledge that are or may be made by or against the Company. This agreement to cooperate includes talking to or meeting with such persons at times and in such places as the Company and the Employee reasonably agree to, as well as giving truthful evidence and truthful testimony. The Company shall reimburse the Employee for reasonable out-of-pocket expenses actually incurred in connection with such assistance. The Employee also promises to notify the Company within five (5) days if the Employee is subpoenaed or contacted by a third party seeking information about Company activities.
Cooperation Prior to the Distribution As promptly as practicable after the date hereof and prior to the Distribution Date:
(a) Subject to the provisions of paragraph (b) below, the Company and Spinco shall prepare an Information Statement (which shall set forth appropriate disclosure concerning Spinco and the Spinco Companies, the Spinco Business, the Distribution and certain other matters) and Spinco shall file with the SEC the Form 10 (which shall include or incorporate by reference the Information Statement). The Company and Spinco shall use their respective reasonable efforts to cause the Form 10 to be declared effective under the Exchange Act or, if either the Company or Parent reasonably determines that the Distribution may not be effected without registering the Spinco Common Stock pursuant to the Securities Act, the Company shall use its best efforts to cause the Spinco Common Stock to be registered pursuant to the Securities Act and thereafter effect the Distribution in accordance with the terms of this Agreement, including, without limitation, by preparing and filing on an appropriate form of registration statement under the Securities Act covering the Spinco Common Stock and using its best efforts to cause such registration statement to be declared effective. Following the effectiveness of such Form 10 (or registration statement, as the case may be), the Company shall mail the Information Statement to the holders of the Company Common Stock.
(b) Before filing with the SEC the Form 10, or the registration statement referred to in Section 3.1(a), as the case may be, or any amendments or supplements thereto, the Company shall furnish to Parent (or Parent's counsel) copies of all such documents proposed to be filed, in order to give Parent (or Parent's counsel) sufficient time to review such documents, and such documents may thereafter be filed subject to any timely and reasonable comments of Parent (or Parent's counsel). On or prior to the Offer Purchase Date, the Company shall (i) deliver to Parent (or Parent's counsel) promptly, following the receipt thereof, copies of all written communications between the Company and the SEC relating to either the Information Statement or the Form 10 (or the registration statement referred to in Section 3.1(a), as the case may be), and (ii) advise Parent (or Parent's counsel) promptly of, and provide Parent (or Parent's counsel) with the opportunity to participate in (to the extent reasonably practicable), all telephonic and other non-written communications between the Company and the SEC relating to either the Information Statement or the Form 10 (or the registration statement referred to in Section 3.1(a), as the case may be). The Company shall respond promptly to any comments from the SEC with respect thereto, after consultation with Parent (or Parent's counsel), and shall take such other actions as shall be reasonably required in order to have the Form 10 declared effective under the Exchange Act, or the registration statement referred to in Section 3.1(a) hereof declared effective under the Securities Act, as the case may be, as soon as reasonably practicable following the date hereof. Before filing with the SEC the Solicitation/Recommendation Statement on Schedule 14D-9 of the Company to be filed by the Company in connection with the Offer, and all amendments or supplements thereto, the Company shall furnish to Parent (or Parent's counsel) copies of all such documents proposed to be filed, in order to give Parent (or Parent's counsel) sufficient time to review such documents, and such documents may thereafter be filed subject to any timely and reasonable comments of Parent (or Parent's counsel). Following the date hereof, the Company shall, and shall cause its Affiliates to, provide promptly to Parent, Purchaser and their respective counsel all such information as such persons may reasonably request in connection with the Tender Offer Statement on Schedule 14D-1 of the Purchaser or Parent to be filed in connection with the Offer.
(c) The Company and Spinco shall cooperate in preparing, filing with the SEC and causing to become effective any registration statements or amendments thereto which are appropriate to reflect the establishment of, or amendments to, any employee benefit and other plans contemplated by this Agreement.
(d) The Company and Spinco shall take all such action as may be necessary or appropriate under state securities or "Blue Sky" Laws in connection with the transactions contemplated by this Agreement.
(e) The Company and Spinco shall prepare, and Spinco shall file and seek to make effective, an application to permit listing of the Spinco Common Stock either on the NYSE or any other national securities exchange or national market system as may be selected by Spinco in its sole discretion (to the extent permitted pursuant to the listing requirements of such exchange or national market system).
(f) The Company and Spinco shall prepare and file an application with the FCC (the "FCC Application") requesting the FCC's consent to the transfer of control of any licenses, permits, approvals or other authorizations issued by the FCC to the Company and its Subsidiaries in connection with their telecommunications and space systems business, including those licenses, permits, approvals and authorizations set forth in Section 3.1(f) of the Disclosure Schedule.
(g) In addition to the actions specifically provided for elsewhere in this Agreement and except as otherwise expressly set forth in this Agreement, each of the parties hereto shall use its respective best efforts to take, or cause to be taken, all actions, and, to execute and deliver, or cause to be executed and delivered, such additional documents and instruments, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable Laws and agreements to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, using its best efforts to obtain the consents and approvals, to enter into any amendatory agreements and to make the filings and applications necessary or desirable to have been obtained, entered into or made in order to consummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing sentence, each of the parties hereto shall use its respective best efforts to ensure that the conditions set forth in Article X hereof are satisfied (insofar as such matters are within the control of such party). Notwithstanding any other provisions set forth in this Agreement (including, without limitation, the provisions of this Section 3.1(g)), neither the Company, nor Spinco nor any of their respective Affiliates shall, without first obtaining the prior written consent of the Parent, take or commit to take any action, in connection with obtaining any consent, waiver or approval or effecting any of the transactions contemplated in connection with the Closing or otherwise, (i) except as otherwise expressly provided in this Agreement, that would result in the payment of any funds (other than normal and usual filing fees) or the incurrence of any liability by the Company or any Retained Subsidiary, (ii) that would result in the divestiture or holding separate of any assets, businesses or operations of the Company or any of the Retained Subsidiaries, (iii) that might materially limit or impair Parent's or the Company's or any Retained Subsidiary's freedom of action with respect to, or its ability to retain or exercise control over, any assets, businesses or operations of the Company or any Retained Subsidiaries (other than any limitations or restrictions expressly set forth in the Merger Agreement, the Tax Sharing Agreement, the Stockholders Agreement or any other agreement to be entered into pursuant to this Agreement or the Merger Agreement prior to the Offer Purchase Date), or (iv) that might otherwise adversely affect Parent, or, following the Offer Purchase Date, either the Company or any Retained Subsidiary.
Servicer Shall Provide Information as Reasonably Required The Servicer shall furnish to the Trustee, during the term of this Agreement, such periodic, special, or other reports or information, whether or not provided for herein, as shall be necessary, reasonable, or appropriate in respect to the Trustee, or otherwise in respect to the purposes of this Agreement, all such reports or information to be as provided by and in accordance with such applicable instructions and directions as the Trustee may reasonably require.
Reasonable Best Efforts; Notification (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except
(b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement.
(c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other:
(i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained;
(ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts;
(iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents.
(d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings.
(e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.
