Debt Financing. Parent shall use its commercially reasonable efforts to promptly provide, and shall cause the Purchased Companies and its and their respective Representatives to use their respectively commercially reasonable efforts to promptly provide, such assistance with Purchaser’s (or its Affiliates’) obtaining debt financing as is reasonably requested by Purchaser; provided that (a) neither Parent nor any of its Affiliates will be required to pay any fee or incur any Liability in connection with any such financing, (b) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent or any of the Purchased Companies in connection with the cooperation contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the Closing.
Appears in 1 contract
Sources: Equity Purchase Agreement (Resideo Technologies, Inc.)
Debt Financing. Parent (a) Subject to Section 6.7(d), NewCo and AT&T shall each use its commercially reasonable efforts to promptly providebest efforts, respectively, and shall cause the Purchased Companies and its and their respective Representatives Representatives, Affiliates and Subsidiaries to use their respectively commercially reasonable best efforts (including, without limitation, in the case of AT&T, to cause NewCo and NewCo Borrower to use reasonable best efforts), in close consultation with the Investor, to obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter (subject to the “flex” provisions in the Fee Letter), and, in lieu of all or a portion of the bridge loan facility set forth in the Debt Commitment Letter, to issue senior secured notes in syndication, in each case, as set forth in the Debt Commitment Letter as promptly as practical taking into account the anticipated timing of the Closing (including, without limitation, using reasonable best efforts, as applicable, to satisfy on a timely basis the conditions set forth on Exhibit D to the Debt Commitment Letter that are within its control, including using reasonable best efforts to promptly provide(i) prepare and deliver, such assistance with Purchaser’s or cause to be prepared and delivered, the Required Financial Statements (or its Affiliates’as defined in the Debt Commitment Letter), (ii) obtaining debt financing prepare and deliver the Offering Document (as is reasonably requested by Purchaser; provided that (adefined in the Debt Commitment Letter) neither Parent nor any of its Affiliates will be in the form required to pay any fee or incur any Liability in connection with any such financing, be delivered pursuant to Exhibit D to the Debt Commitment Letter and (biii) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable facilitate NewCo’s independent auditor’s delivery of consents and document out-of-pocket costs and expenses customary “comfort letters” (including reasonable attorneys’ feesas to negative assurances) incurred by Parent or any of the Purchased Companies in connection with the cooperation Debt Financing). Investor shall use its reasonable best efforts to assist AT&T and NewCo to arrange and obtain the Debt Financing.
(b) Each of AT&T and NewCo shall (i) keep the Investor informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide copies of the material definitive agreements for the Debt Financing and (ii) consult with the Investor on any lender presentations, offering memorandum, term sheets and Definitive Financing Agreements. Each of AT&T, NewCo and the Investor shall give the other Parties prompt notice if any Party becomes aware (w) that the Debt Commitment Letter ceases to be in full force and effect regarding the legal, valid, binding and enforceable obligations of NewCo or of the other parties thereto, (x) of any breach or default by any party to any of the Debt Commitment Letter or definitive agreements related to the Debt Financing, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Debt Financing Source with respect to (1) any actual or threatened breach, default, termination or repudiation by any party to the Debt Commitment Letter or definitive agreements related to the Debt Financing or (2) material dispute or disagreement between or among any parties to any of the Debt Commitment Letter or definitive agreements related to the Debt Financing with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at Closing, and (z) if at any time for any reason any Party believes in good faith that NewCo’s ability to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by this Section 5.16the Debt Commitment Letter or definitive agreements related to the Debt Financing has been, or will be, materially and adversely impacted.
(c) any cooperation required pursuant to this Section 5.16 will Any right that may be conducted in a manner as to not unreasonably interfere with exercised by both AT&T and the Business or operations of Parent or any of its Affiliates (Investor under the Debt Commitment Letter shall be exercised by the two parties jointly, including the Purchased Companies), designation of “Disqualified Institutions” thereunder.
(d) Parent will AT&T and the Investor shall jointly agree on when to consummate the Debt Financing and no Debt Financing shall be issued without the consent of each of AT&T and the Investor, which in each case shall not be required unreasonably withheld, conditioned or delayed. In determining when to disclose or permit to disclose any information if such disclosure wouldconsummate the Debt Financing, or take any action if such action would, AT&T and the Investor will consider the terms set forth in the reasonable discretion of ParentDebt Commitment Letter to be obtained in syndication at such time and the pricing, violate or breach any Lawfees, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or escrow costs (if any) and other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closingfinancing costs. Notwithstanding the foregoing, except after the Inside Date, upon satisfaction of all conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the case Closing and the condition in Section 7.1(c)), NewCo Borrower may, without the consent of a willful breach by ParentAT&T or the Investor, consummate the failure by Parent Debt Financing pursuant to comply, or cause the Purchased Companies or its or their respective representatives to comply, with Debt Commitment Letter on the terms set forth in therein (including any “flex” provision thereof).
(e) All material non-public information provided by AT&T or Investor or any of their respective Subsidiaries or Representatives pursuant to this Section 5.16 6.7 shall be kept confidential in accordance with the Confidentiality Agreement and the NewCo Operating Agreement, as applicable, except that the Parties shall be permitted to disclose such information upon mutual agreement of the Parties to the debt financing sources and other potential sources of capital, rating agencies and prospective lenders (but not constitute prospective investors in any debt securities offering) during syndication of the Debt Financing subject to the potential sources of capital, ratings agencies and prospective lenders and investors entering into customary confidentiality undertakings with respect to such information (including through a basis notice and undertaking in a form customarily used in confidential information memoranda for Purchaser to refuse to consummate the Closingsenior credit facilities).
Appears in 1 contract
Sources: Agreement of Contribution and Subscription (At&t Inc.)
Debt Financing. Parent (i) Prior to the Closing Date, the Company shall use its commercially reasonable efforts to promptly provide, and shall cause each Subsidiary of the Purchased Companies and its and their respective Representatives Company to use their respectively its commercially reasonable efforts to promptly provide, to Parent and Merger Sub, in each case at Parent’s sole expense, all customary cooperation reasonably requested in writing by Parent (e-mail being sufficient) in connection with the offering, arrangement, syndication, consummation or issuance of any financing with respect to the Acquired Companies and the Company Properties effective as of or after the Merger Effective Time (the “Debt Financing”) (provided that such assistance requested cooperation does not unreasonably interfere with Purchaser’s (the ongoing operations of the Company or any of its Affiliates’), including using commercially reasonable efforts to:
(1) obtaining debt financing upon reasonable notice, direct employees of the Company with appropriate seniority and expertise to participate in a reasonable number of meetings (including one-on-one meetings or conference calls with providers of the Debt Financing), drafting sessions, road shows, rating agency presentations and due diligence sessions and other syndication activities and presentations with prospective lenders at reasonable times and locations mutually agreed; provided, that any such meeting or communication may be conducted virtually by videoconference or other media;
(2) provide reasonable and customary assistance to Parent with the preparation of customary offering documents, offering memoranda, syndication materials, information memoranda, lender presentations, materials for rating agency presentations, private placement memoranda, bank information memoranda and similar documents reasonably necessary in connection with the Debt Financing and provide reasonable cooperation with the due diligence efforts of any source of any Debt Financing to the extent reasonable and customary; in each case in this clause: (A) subject to customary confidentiality provisions and disclaimers; (B) as is reasonably requested by PurchaserParent; and (C) limited to information to be contained therein with respect to the Acquired Companies;
(3) furnish Parent, reasonably promptly upon written request, with such historical and projected financial, statistical and other pertinent information relating to the Acquired Companies as may be reasonably requested by Parent, as is usual and customary for Debt Financings and reasonably available and prepared by or for the Acquired Companies in the ordinary course of business;
(4) assist with the preparation of customary definitive loan documentation contemplated by the Debt Financing (including schedules), including any customary guarantee, pledge and security documents (provided that any such documents or agreements and any obligations contained in such documents shall be effective no earlier than as of the Merger Effective Time);
(5) provide to Parent upon written request all documentation and other information with respect to the Acquired Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act in connection with the Debt Financing, in each case as reasonably requested by Parent;
(6) cooperate in connection with the repayment or defeasance of any existing Indebtedness of the Acquired Companies as of, and subject to occurrence of, the Closing and the release of related Liens following the repayment in full of such Indebtedness, including using commercially reasonable efforts to deliver such customary payoff, defeasance or similar notices within the time periods contemplated under any existing loans of the Acquired Companies as are reasonably requested by Parent (provided, that the Company shall not be required to deliver any notices that are not conditioned on, and subject to the occurrence of, the Closing);
(7) cooperate with obtaining customary title insurance with respect to each material Company Property as reasonably requested by Parent;
(8) provide reasonable and customary assistance with respect to attempting to obtain any third-party consents associated with the delivery of guarantees and granting of mortgages, pledges and security interests in collateral for the Debt Financing;
(9) cause the Company’s independent auditors to deliver customary “comfort letters” and customary consents to the use of accountants’ audit reports in connection with the Debt Financing;
(10) provide customary authorization letters authorizing the distribution of Company information to prospective lenders in connection with a syndicated bank financing;
(11) consent to the use of the Acquired Company’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 the Acquired Company’s reputation or goodwill;
(a12) reasonably cooperate with the marketing efforts of Parent and its financing sources for any Debt Financing to be raised by Parent to complete the Merger and the other transactions contemplated by this Agreement;
(13) as may be reasonably requested by Parent, following the obtainment of the Stockholder Approval, form new direct or indirect Wholly Owned Company Subsidiary pursuant to documentation reasonably satisfactory to Parent and the Company;
(14) as may be reasonably requested by Parent, and no earlier than immediately prior to the Merger Effective Time on the Closing Date, and provided such actions would not adversely affect the Tax status of the Company or any of its Subsidiaries or cause the Company or any of its Subsidiaries to be subject to additional Taxes or otherwise suffer or incur any amounts that are not indemnified by Parent under Section 7.12(a)(iii), transfer or otherwise restructure its ownership of existing Subsidiaries of the Company, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and the Company;
(15) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, attempt to obtain estoppels and certificates from non-residential tenants, lenders, managers, franchisors, ground lessors, ground lessees and counterparties to reciprocal easement agreements, declarations and similar agreements in form and substance reasonably satisfactory to any potential financing source;
(16) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, provide customary and reasonable assistance to allow Parent and its Representatives to conduct customary appraisal and non-invasive environmental and engineering inspections of each Owned Company Property and, subject to obtaining required third-party consents with respect thereto (which the Company shall use reasonable efforts to obtain to the extent reasonably requested by Parent and required in connection with such inspections), Leased Company Property (provided, however, that (A) neither Parent nor its Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such property, (B) Parent shall schedule and coordinate all inspections with the Company in accordance with Section 7.2, and (C) the Company shall be entitled to have representatives present at all times during any such inspection); and
(17) to the extent necessary or advisable, reasonably cooperate to facilitate, effective no earlier than the Closing, the execution and delivery of definitive financing, pledge, security and guarantee documents reasonably requested by Parent and required in connection with the Debt Financing, including customary indemnities and bring down certificates issued in connection with a securitization of the Debt Financing.
(ii) The Company shall have satisfied its obligations set forth in Section 7.12(a)(i) if the Company shall have used its commercially reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. Notwithstanding the foregoing, the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under Section 7.12(a)(i) to the extent that it: (i) unreasonably interferes with the ongoing business of the Acquired Companies; (ii) requires the Acquired Companies to incur any liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the Debt Financing prior to the Closing (except those fees, expenses and liabilities for which the Company is reimbursed by Parent); (iii) requires the Acquired Companies or their respective directors, trustees, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing (other than with respect to customary authorization letters with respect to bank information memoranda) or adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, in each case which is not contingent upon the Closing or would be effective at or prior to the Merger Effective Time; (iv) requires the Acquired Companies or their counsel to give any legal opinion; (v) requires the Acquired Companies to provide any information that is prohibited or restricted by applicable Law; (vi) provide access to or disclose information that the Company or any of its Affiliates will Subsidiaries determines would result in a loss or waiver of or jeopardize any attorney-client privilege, attorney work product or other legal privilege (provided, that the Company shall use reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in this clause (vi)); (vii) requires the Acquired Companies to take any action that is prohibited or restricted by, or would conflict with or violate, its organizational documents, or would result in a violation or breach of, or default under, any Material Contract to which any of the Acquired Companies is a party or any applicable Laws; (viii) would result in any officer or director of the Acquired Companies incurring personal liability with respect to any matter relating to the Debt Financing or requires any officer, director or other Representative of the Company or any of its Subsidiaries to deliver any certificate that such officer, director or other Representative reasonably believes, in good faith, contains any untrue certifications or (ix) requires the Acquired Companies or their Representatives, as applicable, to waive or amend any terms of this Agreement. In no event shall the Company be in breach of this Agreement because of the failure to deliver any financial or other information that (A) is not currently readily available to the Acquired Companies on the date hereof and is not otherwise prepared in the ordinary course of business of Acquired Companies at the time requested by Parent or (B) for the failure to obtain review of any financial or other information by its accountants after using commercially reasonable efforts to obtain the same. In no event shall the Acquired Companies be required to pay any commitment or other fee or give an indemnity or incur any Liability liability (including due to any act or omission by the Company, its Subsidiaries or any of their respective Affiliates or Representatives) or expense (including legal and accounting expenses) in connection with assisting Parent and Merger Sub in arranging the Debt Financing or as a result of any such financinginformation provided by the Company, its Subsidiaries or any of their respective Affiliates or Representatives in connection with the Debt Financing prior to the Merger Effective Time (b) Purchaser shall promptlyexcept those fees, upon request expenses, financial commitments or other financial obligations for which the Company is reimbursed by Parent). None of the representations, warranties or covenants of the Company set forth in this Agreement shall be deemed to apply to, or deemed breached or violated by, any of the actions taken by the Company, any of the Company Subsidiaries, or any of their respective Representatives at the request of Parent pursuant to Section 7.12. For the avoidance of doubt, the Parties hereto acknowledge and agree that the provisions contained in this Section 7.12(a)(ii) represent the sole obligation of the Acquired Companies and their respective Affiliates with respect to cooperation in connection with the Debt Financing.
(iii) Parent shall reimburse Parent the Acquired Companies promptly upon demand for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ and accountants’ fees) (other than in respect of the preparation of customary historical financials) incurred by Parent or any of the Purchased Acquired Companies and its Representatives in connection with the cooperation under Section 7.12, any action taken by them at the request of Parent pursuant to Section 7.12 (including the dissolution and termination of any subsidiaries formed and documentation entered into pursuant to Section 7.12), and shall indemnify and hold harmless the Acquired Companies and their Representatives and each of the Acquired Companies’ and their Representatives’ respective present and former directors, officers, employees and agents (collectively, the “Financing Indemnified Parties”) from and against any and all out-of-pocket costs, expenses, losses, damages, claims, judgments, fines, penalties, interest, settlements, awards and liabilities suffered or incurred by any of them in connection with the arrangement and consummation of the Debt Financing and any information used in connection therewith (other than the information provided in writing by the Company or the other Acquired Companies to Parent specifically in connection with their obligations pursuant to Section 7.12(a)). The provisions of this Section 7.12(a)(iii) are intended to be for the benefit of, and shall be enforceable by, each of the foregoing Financing Indemnified Parties. This Section 7.12(a)(iii) shall survive the termination of this Agreement (and in the event the Merger and the other transactions contemplated hereby are not consummated, Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs incurred by the Company and its Subsidiaries in connection with the cooperation under Section 7.12, and not previously reimbursed).
(iv) All confidential information regarding the Acquired Companies obtained by the Parent Parties and their respective Affiliates and Representatives pursuant to Section 7.12 shall be kept confidential in accordance with the Confidentiality Agreement. For the avoidance of doubt, without the prior written consent of the Company, in no event will Parent, Merger Sub or any of their respective Affiliates (which for this purpose will be deemed to include each direct investor in Parent or Merger Sub) enter into any agreement, arrangement or any other understanding, whether written or oral, with any potential source of Debt Financing that would reasonably be expected to limit, restrict, restrain, otherwise impair in any manner, directly or indirectly, the ability of such source of Debt Financing to provide Debt Financing or other assistance to any other party in any other transaction involving the Acquired Company (provided that the foregoing shall not prohibit the establishment of customary “tree” arrangements).
(v) Prior to the Closing Date, upon the request of the Company, Parent shall keep the Company reasonably informed in reasonable detail of the status of its efforts to arrange the Debt Financing. The Parent Parties acknowledge and agree that the obtaining of the Debt Financing is not a condition to Closing and that the consummation of the transactions contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will Agreement shall not be required to disclose or permit to disclose any information if such disclosure wouldconditioned on, or take any action if such action would, in delayed or postponed as a result of the reasonable discretion of Parent, violate or breach any Law, Organizational Documents obtaining (or the provisions of any Contract failure to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (eobtain) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the ClosingDebt Financing.
Appears in 1 contract
Debt Financing. Parent (i) Prior to Closing, the Company shall, and shall cause its Subsidiaries to, use its commercially reasonable efforts to promptly provide (or cause its Subsidiaries to provide), in each case at Parent’s sole cost and shall cause expense, such customary cooperation in connection with the Purchased offering, arrangement, syndication, consummation or issuance of any debt, equity or equity-linked financing deemed necessary or appropriate by Parent, including, among other things, any debt or equity financing to be incurred or contemplated to be incurred in connection with the Transactions, the Acquired Companies and the Real Properties effective as of or after the Closing, as reasonably requested in writing (email being sufficient) by Parent (collectively, the “Debt Financing”); provided that the Company shall in no event be required to provide (or cause its and their respective Representatives Subsidiaries to use their respectively provide) such assistance that shall unreasonably interfere with its or its Subsidiaries’ business operations. Such assistance shall include using commercially reasonable efforts to do the following as promptly provideas reasonably practicable after ▇▇▇▇▇▇’s written request (email being sufficient), each of which with reasonable prior notice and at Parent’s sole cost and expense:
(1) make employees of the Company with appropriate seniority and expertise available to participate in a reasonable number of roadshows, due diligence sessions, drafting sessions, meetings (including one-on-one meetings or conference calls with providers of Debt Financing), rating agency presentations and other syndication activities and presentations with prospective lenders at reasonable times and locations mutually agreed; provided that any such meeting or communication may be conducted virtually by videoconference or other media;
(2) provide reasonable and customary assistance to Parent with Purchaser’s the preparation of customary offering documents, offering memoranda, syndication materials, information memoranda, lender presentations, materials for ratings agency presentations, private placement memoranda, bank information memoranda and similar documents reasonably necessary in connection with the Debt Financing and provide reasonable cooperation with the due diligence efforts of any source of any Debt Financing to the extent reasonable and customary; in each case in this clause: (or its Affiliates’A) obtaining debt financing subject to customary confidentiality provisions and disclaimers, (B) as is reasonably requested by Purchaser▇▇▇▇▇▇ and (C) limited to information to be contained therein with respect to the Acquired Companies or the Owned Real Property and Leased Real Property;
(3) furnish Parent, reasonably promptly upon written request, with such historical and projected financial, statistical and other pertinent information relating to the Acquired Companies as may be reasonably requested by Parent, as is usual and customary for Debt Financings and reasonably available and prepared by or for the Acquired Companies in the ordinary course of business;
(4) assist with the preparation of customary definitive loan documentation contemplated by the Debt Financing (including schedules), including any customary guarantee, pledge and security documents (provided that any such documents or agreements and any obligations contained in such documents shall be effective no earlier than as of the Partnership Merger Effective Time);
(5) provide to Parent upon written request all documentation and other information with respect to the Acquired Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act in connection with the Debt Financing, in each case as reasonably requested by Parent;
(6) cooperate in connection with the repayment or defeasance of any existing Indebtedness of the Acquired Companies as of, and subject to occurrence of, the Closing and the release of related Liens following the repayment in full of such Indebtedness, including using commercially reasonable efforts to deliver such customary payoff, defeasance or similar notices within the time periods contemplated under any existing loans of the Acquired Companies as are reasonably requested by Parent (provided that the Company shall not be required to deliver any notices that are not conditioned on, and subject to the occurrence of, the Closing);
(7) cooperate with obtaining customary title insurance with respect to each material Real Property as reasonably requested by ▇▇▇▇▇▇;
(8) provide reasonable and customary assistance with respect to attempting to obtain any third-party consents associated with the delivery of guarantees and granting of mortgages, pledges and security interests in collateral for the Debt Financing;
(9) cause the Company’s independent auditors to deliver customary “comfort letters” and customary consents to the use of accountants’ audit reports in connection with the Debt Financing;
(10) provide customary authorization letters authorizing the distribution of Company information to prospective lenders in connection with a syndicated bank financing;
(11) consent to the use of the Acquired Company’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 the Acquired Company’s reputation or goodwill;
(12) reasonably cooperate with the marketing efforts of Parent and its Financing Sources for any Debt Financing to be raised by ▇▇▇▇▇▇ to complete the Transactions;
(13) as may be reasonably requested by ▇▇▇▇▇▇, following the obtainment of the Required Company Stockholder Approval, form new direct or indirect wholly owned Subsidiaries of the Company pursuant to documentation reasonably satisfactory to Parent and the Company;
(14) as may be reasonably requested by ▇▇▇▇▇▇, and no earlier than immediately prior to the Partnership Merger Effective Time on the Closing Date, and provided such actions would not adversely affect the Tax status of the Company or any of its Subsidiaries or cause the Company or any of its Subsidiaries to be subject to additional Taxes or otherwise suffer or incur any amounts that are not indemnified by Parent under Section 6.17(a)(iii), transfer or otherwise restructure its ownership of existing Subsidiaries of the Company, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and the Company;
(15) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, attempt to obtain estoppels and certificates from tenants, lenders, managers, franchisors, ground lessors, ground lessees and counterparties to reciprocal easement agreements, declarations and similar agreements in form and substance reasonably satisfactory to any potential Financing Source;
(16) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, provide customary and reasonable assistance to allow Parent and its Representatives to conduct customary appraisal and non-invasive environmental and engineering inspections of each Owned Real Property and, subject to obtaining required third-party consents with respect thereto (which the Company shall use reasonable efforts to obtain to the extent reasonably requested by Parent and required in connection with such inspections), Leased Real Property (provided, however, that (A) neither Parent nor its Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such Owned Real Property or Leased Real Property, (B) Parent shall schedule and coordinate all inspections with the Company in accordance with Section 6.05, and (C) the Company shall be entitled to have representatives present at all times during any such inspection); and
(17) to the extent necessary or advisable, reasonably cooperate to facilitate, effective no earlier than the Closing, the execution and delivery of definitive financing, pledge, security and guarantee documents reasonably requested by Parent and required in connection with the Debt Financing, including customary indemnities and bring down certificates issued in connection with a securitization of the Debt Financing; provided that (av) neither Parent the Company nor any of its Affiliates will be required to pay make any fee or incur any Liability filings with the SEC in connection with any such financingDebt Financing (other than in any applicable proxy statement), (bw) Purchaser nothing in this Section 6.17 shall promptlyrequire any such action to the extent it would (1) unreasonably interfere with the business or operations of the Acquired Companies or require the Acquired Companies to agree to pay any fees, reimburse any expenses or give any indemnities or otherwise incur any liability, in any case prior to the Closing, or for which Parent does not promptly reimburse or indemnify it, as the case may be, under this Agreement, (2) require any Acquired Company or its Representatives to execute, deliver, enter into or perform any Financing Document (other than with respect to customary authorization letters with respect to bank information memoranda) that is effective prior to the Closing or that is not contingent on Closing or (3) require any officer, director or other Representative of the Company or any of its Subsidiaries to deliver any certificate that such officer, director or other Representative reasonably believes, in good faith, contains any untrue certifications, (x) none of the general partners or board of directors (or other similar governing body) or committee or subcommittee thereof of any Acquired Company shall be required to adopt resolutions approving any Financing Documents that is effective prior to the Closing unless contingent on Closing (and any such adoption or approval at Closing shall be performed by such general partner, board of directors (or other similar governing body) or committee or subcommittee thereof as constituted after the Company Merger Effective Time and Closing), (y) the Company’s obligations under this Section 6.17 shall be subject to Persons being bound by confidentiality agreements in accordance with customary market practice, and (z) none of the Acquired Companies shall be required to provide any information or take any action to the extent it would (1) cause significant competitive harm to any Acquired Company if the Transactions are not consummated, (2) violate, conflict with, breach or result in a default under, or that is prohibited or restricted by, Applicable Law or its Organizational Documents, (3) jeopardize any attorney-client, attorney work product or other legal privilege or similar protection (provided that the Company shall use reasonable efforts to allow access to such information in a manner that does not result in the events set out in this clause (3)), (4) violate any applicable confidentiality obligation of any Acquired Company, (5) require any Acquired Company to waive or amend any terms of this Agreement, (6) require any Acquired Company or any of its Affiliates to incur any liability or make any payment that is not reimbursed or indemnified by Parent under Section 6.17(a)(iii) or enter into any Contract that is not contingent on Closing, (7) reasonably be expected to constitute a violation or breach of, or default under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of any Company Material Contract binding upon such Person, (8) result in the creation or imposition of any Lien on any asset of such Person (except any Lien on any of the Acquired Company’s respective assets that becomes effective only upon the Closing), (9) result in any significant or unreasonable interference with the prompt and timely discharge of the duties of any Acquired Company’s or any of its Affiliates’ directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives, (10) result in any Acquired Company’s or any of its Affiliates’ directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives incurring any personal liability with respect to any matters relating to the Debt Financing or (11) result in any condition to Closing set forth in Article VII to fail to be satisfied by the End Date or otherwise result in a breach of this Agreement by any Acquired Company. Notwithstanding anything to the contrary in this Section 6.17(a)(i), the condition set forth in Section 7.02(b), as it applies to the Company’s obligations under this Section 6.17(a)(i), shall automatically be deemed satisfied, except to the extent the Company has committed a Willful Breach of its obligations under this Section 6.17(a)(i), Parent has provided to the Company written notice of such breach within 10 Business Days of first becoming aware of such breach and the Company fails to cure such breach by the earlier of 10 Business Days after such notice is provided or the End Date. In no event shall the Company be in breach of this Agreement for the failure to (A) deliver any financial or other information that is not currently readily available to the Acquired Companies or is not prepared in the ordinary course of business of the Acquired Companies at the time requested by Parent or (B) obtain review of any financial or other information by their accountants after using commercially reasonable efforts to obtain the same. None of the representations, warranties or covenants of the Company set forth in this Agreement shall be deemed to apply to, or deemed breached or violated by, any of the actions taken by the Company, any of its Subsidiaries or any of their respective Representatives at the request of Parent pursuant to this Section 6.17. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.17(a)(i) represent the sole obligation of the Acquired Companies and their respective Affiliates with respect to the cooperation in connection with Debt Financing.
(ii) The Company shall not be required to agree to any contractual obligation relating to the Debt Financing that is not conditioned upon the Closing and that does not terminate without liability to the Company and its Affiliates upon the termination of this Agreement that is not reimbursed or indemnified by Parent. The Company shall not be required to deliver or cause the delivery of any legal opinions, reimburse 10b-5 letters, authorization and representation letters or solvency certificates in connection with the Debt Financing. In addition, the parties hereto agree that any information with respect to the prospects and plans for the Acquired Companies in connection with the Debt Financing will be the sole responsibility of Parent, and neither the Acquired Companies nor any of their Affiliates, directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives, shall have any liability or incur any damages with respect thereto or be required to provide any information or make any presentations with respect to capital structure, or the incurrence of the Debt Financing or other pro forma information relating thereto or the manner in which Parent for intends to operate, or cause to be operated, the Acquired Companies after the Closing.
(iii) Parent shall indemnify and hold harmless the Acquired Companies, and each of their Representatives, and each of the Acquired Companies’ and their Representatives’ respective present and former directors, officers, employees and agents (collectively, the “Financing Indemnified Parties”), from and against any and all reasonable and document out-of-pocket costs and or expenses (including reasonable attorneys’ fees) ), judgments, fines, losses, claims, damages, liabilities, penalties, interest, awards or amounts paid in settlement that are suffered or incurred by Parent or any of the Purchased Companies in connection with the cooperation contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent Debt Financing or any of its Affiliates information, assistance or activities provided in connection therewith (including other than the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, provided in writing by the reasonable discretion of Parent, violate or breach any Law, Organizational Documents Company or the provisions of any Contract Acquired Companies to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the Closing.Pare
Appears in 1 contract
Sources: Merger Agreement (Retail Opportunity Investments Partnership, LP)
Debt Financing. Parent Without in any way limiting any of the parties’ obligations under Section 6.6:
(a) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to promptly provide, and shall cause the Purchased Companies respective officers, employees, consultants and advisors, including legal and accounting advisors, of the Company and its Subsidiaries to, provide to Parent all cooperation reasonably requested by Parent in connection with satisfying the conditions precedent contained in the Debt Commitment Letters and their respective Representatives to use their respectively the arrangement of the Debt Financing, including, without limitation, (i) participation in a reasonable number of meetings, presentations and due diligence and drafting sessions, (ii) providing reasonable assistance with the preparation of materials for lender meetings, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing, (iii) using commercially reasonable efforts to promptly providecause its independent accountants to provide assistance and cooperation to Parent, such assistance with Purchaser’s including but not limited to participating in a reasonable number of accounting due diligence sessions, providing consent to Parent to use their audit reports relating to the Company and providing any necessary “comfort letters,” (iv) executing and delivering definitive financing documents, including pledge, guaranty agreements and security documents and other certificates or its Affiliates’documents (including interest rate hedging agreements) obtaining debt financing as is may be reasonably requested by PurchaserParent, and otherwise reasonably facilitating the pledging of collateral, in connection with the Debt Financing immediately prior to the Effective Time; provided that no obligation of the Company or any of its Subsidiaries under any such agreement, document or pledge shall be effective until the Effective Time, (av) providing reasonable access to the books and records, officers, directors, agents and Representatives of the Company and its Subsidiaries, (vi) using commercially reasonable efforts to obtain surveys, title insurance and non-invasive environmental assessments reasonably requested by Parent, (vii) as promptly as practicable, using commercially reasonable efforts to furnish to Parent and its Financing Sources all financial and other pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent, to the extent within the Company’s custody or control, including all information and data necessary to satisfy the conditions set forth in the Debt Commitment Letters, and providing authorization letters to Financing Sources authorizing the distribution of information to prospective lenders or investors, in each case subject to confidentiality agreements reasonably requested by the Company, (viii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements in connection with the Debt Financing and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing; provided that no right of any lender, nor any obligation of the Company or any of its Subsidiaries, thereunder shall be effective until the Effective Time, (ix) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing and the direct borrowing or incurrence of all of the proceeds of the Debt Financing, including any high yield debt financing, by the Company immediately following the Effective Time, (x) obtaining customary payoff letters, lien releases and terminations and instruments of discharge to be delivered at Closing, provided that no such payoff letter, lien releases or terminations or instruments shall be effective until the Effective Time, and (xi) furnishing Financing Sources as promptly as practicable with all documentation and other information which any lender providing or arranging the Debt Financing has reasonably requested and that such lender has determined is required by Governmental Entities in connection with the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the USA PATRIOT Act; provided, that nothing herein shall require such cooperation to the extent it would unreasonably interfere with the business or operations of the Company or its Subsidiaries, or otherwise result in any significant interference with the prompt and timely discharge by the Company’s or any of its Subsidiaries’ personnel of their normal duties; provided further that neither Parent the Company nor any of its Affiliates will Subsidiaries shall be required to pay any commitment fee or similar fee or incur any Liability in connection with any such financing, (b) Purchaser respect to the Debt Financing prior to the Effective Time or which is not subject to the occurrence of the Closing. Parent shall promptly, upon request by Parentthe Company, reimburse Parent the Company for all reasonable and document documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent or any of the Purchased Companies in connection with the cooperation contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent Company or any of its Affiliates (including Subsidiaries in connection with any cooperation provided under this Section 6.17. The Company hereby consents to the Purchased Companies)use of its and its Subsidiaries’ logos as may be reasonably necessary, (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action wouldas reasonably determined by the Financing Sources, in connection with arranging and providing the reasonable discretion of Parent, violate Debt Financing; provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or breach any Law, Organizational Documents or disparage the provisions of any Contract to which Parent Company or any of its Affiliates is bound Subsidiaries or jeopardize the reputation or goodwill of the Company or any attorney-client of its Subsidiaries and its or other legal privilegetheir marks.
(b) Subject to the provisions of Section 6.17(c), and (e) Parent will not be required shall use its reasonable best efforts to approach any landlord, consignee, customs brokertake, or other similar third party prior cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letters, including, without limitation, using reasonable best efforts to (i) maintain in effect the Debt Commitment Letters on the terms and conditions described therein, negotiate and enter into definitive agreements with respect to the Closing Debt Financing on the terms and conditions reflected in the Debt Commitment Letters or on other terms as would not reasonably be expected to discuss landlord waiversmaterially impede the ability of Parent and Merger Sub to timely consummate the transactions contemplated by this Agreement in accordance with the terms hereof and applicable Legal Requirements; (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub set forth in the Debt Commitment Letters and such definitive agreements that are within their control, collateral access agreements (iii) consummate the Debt Financing at or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing, (iv) comply with its obligations under the Debt Commitment Letters, and (v) enforce its rights under the Debt Commitment Letters.
(c) Parent shall keep the Company reasonably informed on a reasonably current basis and in reasonable detail of the status of the Debt Financing and provide to the Company copies of all executed definitive documents related to the Debt Financing. Notwithstanding Without limiting the generality of the foregoing, except Parent shall give the Company prompt (and in any event within one (1) Business Day) written notice: (i) of any default or breach (or any event that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any default or breach) by any party to any Debt Commitment Letter or definitive Contract related to the Debt Financing of which Parent has knowledge or becomes aware; (ii) of the receipt of any written notice from any party to a Debt Commitment Letter with respect to any (x) actual or potential default, breach, termination or repudiation by such party of a Debt Commitment Letter or any definitive Contract related to the Debt Financing; and (iii) if for any reason Parent has definitively determined that it will not be able to obtain all or any material portion of the Debt Financing on the terms and conditions, in the case manner or from the Financing Sources contemplated by the Debt Commitment Letters. As soon as reasonably practicable, but in any event within two (2) Business Days after the date that the Company delivers Parent a written request therefor, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in any of a willful breach by Parentthe foregoing clauses (i) through (iii) above. Parent shall not enter into, the failure by Parent to complymake, or cause or permit to be made any amendment or modification to a Debt Commitment Letter that amends or modifies the Purchased Companies conditions precedent to the Debt Financing in any manner that would reasonably be expected to delay or prevent the Closing from occurring on a timely basis, or make the funding of the Debt Financing materially less likely to occur. Parent shall provide the Company with a copy of any amendment or modification to a Debt Commitment Letter promptly after the same is entered into. Subject to the terms and conditions of this Agreement, in the event that any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letters, Parent shall immediately notify the Company thereof, and shall promptly following the occurrence of such event use its reasonable best efforts to arrange to (A) obtain alternative financing (in an amount at least equal to the amount of the Debt Financing or their respective representatives to complysuch unavailable portion thereof, as the case may be, or such lesser amount, together with the terms set forth in this Section 5.16 shall not constitute a basis available cash of the Company and the available cash on hand of Parent and its Subsidiaries, as is sufficient for Purchaser Parent and Merger Sub enable Parent to refuse pay the aggregate Merger Consideration and the aggregate Option Merger Consideration, to consummate the ClosingMerger upon the terms contemplated by this Agreement and to pay all related fees and expenses associated therewith) from alternative sources (“Alternative Financing”), on terms that are substantially comparable, in the aggregate, to those contained in the Debt Commitment Letters, and (B) obtain a new financing commitment letter or letters with respect to such Alternative Financing (collectively, the “Alternative Debt Commitment Letters”), which shall replace the existing Debt Commitment Letters, a true, complete and correct copy of each of which Parent shall promptly provide to the Company. In the event that any Alternative Debt Commitment Letter is obtained, (1) any reference in this Agreement to the “Debt Financing” shall mean the debt financing contemplated by the Debt Commitment Letters as modified by the Alternative Commitment Letters, and (2) any reference in this Agreement to the “Debt Commitment Letters” shall be deemed to include the Debt Commitment Letters to the extent not superseded by Alternative Debt Commitment Letters at the time in question and the Alternative Debt Commitment Letters to the extent then in effect. Parent shall keep the Company reasonably apprised as to the status of, and any material developments relating to, the Debt Financing and, if applicable, any Alternative Financing.
Appears in 1 contract
Sources: Merger Agreement (Answers CORP)
Debt Financing. Parent (a) From the date hereof until the earlier of the Closing Date or the termination of this Agreement pursuant to Section 13.01, Arsenal Blocker Seller and the Company shall use its commercially reasonable efforts to promptly provideprovide to Buyer, and shall cause the Purchased Companies and its and their respective Representatives to use their respectively commercially reasonable efforts to promptly providecause Arsenal Blocker Seller's and the Company's respective officers, employees, representatives and advisors to promptly provide to Buyer, such assistance with Purchaser’s (or its Affiliates’) obtaining cooperation as is customary for debt financing financings of the type contemplated by the Debt Commitment Letter and as is reasonably requested by Purchaser; Buyer in connection with arranging and obtaining the Debt Financing, including (i) as promptly as practicable, furnishing Buyer, its Affiliates and its financing sources with the Required Information, (ii) using commercially reasonable efforts in assisting Buyer with the preparation of customary offering documents, financial statements, pro formas, or any other financial information and materials, including prospectuses, private placement memoranda, information memoranda and packages, lender and investor presentations, rating agency presentations, and similar documents and materials reasonably requested by Buyer in connection with the Debt Financing, provided that (a) neither Parent nor any of its Affiliates will no financial statements shall be required to pay any fee or incur any Liability be prepared other than those customarily prepared by the Company, (iii) facilitating the pledging of collateral (which shall only be effective at the Closing), (iv) cooperating in connection with the pay-off of existing Funded Debt to the extent contemplated by this Agreement and the release of related Liens and termination of security interests, including obtaining customary payoff letters, lien releases and instruments of discharge or releases to be delivered at the Closing, (v) providing at least five (5) Business Days prior to the Closing Date all documentation and other information about the Company as is required by applicable "know your customer" and anti-money laundering rules and regulations including the USA Patriot Act provided such information was requested at least ten (10) Business Days prior to the Closing Date, (vi) upon reasonable notice and at reasonably convenient times and locations making the officers or other senior management available to participate in a reasonable number of meetings and presentations, including lender and rating agency presentations, drafting sessions and due diligence sessions and (vii) delivering unaudited financial statements of the Company for each fiscal month within 30 days after the end of such month in the form customarily prepared by the Company; provided, however, that (A) neither the Company, nor its respective officers, directors or employees shall be required to execute or enter into or perform any agreement with respect to the Debt Financing that is not contingent upon the Closing or that would be effective prior to the Closing, (B) no counsel for Arsenal Blocker Seller or the Company shall be obligated to deliver any opinion in connection with the Debt Financing, (C) no director, manager or member of Arsenal Blocker Seller or the Company in their capacities as such financingshall be required to pass resolutions or consents or approve or authorize the execution of any documents in connection with the Debt Financing, (D) no Person shall be required to to participate in any meetings, presentations, drafting sessions or due diligence sessions to the extent such participation would unreasonably interfere with such Person's continuing duties with the Company and its Subsidiaries, (E) none of Arsenal Blocker Seller or the Company shall be obligated to deliver any financial statements that are not customarily prepared by the Company, (F) no officer of Arsenal Blocker Seller or the Company shall be obligated to deliver a solvency certificate, and (G) neither Arsenal Blocker Seller nor the Company shall be required to deliver or cause the delivery of any accountant or cold comfort letter.
(b) Purchaser Buyer shall promptly, upon request by Parentthe Representative, indemnify, hold harmless and reimburse Parent Arsenal Blocker Seller or the Company for all reasonable and document documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent Arsenal Blocker Seller or any of the Purchased Companies Company in connection with the cooperation of Arsenal Blocker Seller and the Company contemplated by this Section 5.16, 6.08.
(c) any cooperation required pursuant The Company hereby consents to this Section 5.16 will be conducted the use of all of their trademarks, service marks and logos for purposes of the Debt Financing; provided that, such trademarks, service marks and logos are used solely in a manner as that is not intended or reasonably likely to not unreasonably interfere with harm or disparage the Business Company or operations the reputation or goodwill of Parent or any of its Affiliates (including the Purchased Companies), Company.
(d) Parent will not be required From the date hereof until the earlier of the Closing Date or five (5) Business Days after the termination of this Agreement pursuant to disclose or permit Section 13.01:
(i) Subject to disclose any information if such disclosure wouldthe terms and conditions of this Agreement, Buyer shall use its reasonable best efforts to take, or take any action if such action wouldcause to be taken, all actions and to do, or cause to be done, as promptly as reasonably practicable, all things necessary, proper or advisable to arrange and obtain the Debt Financing on the terms and conditions described in the reasonable discretion Debt Commitment Letter (including any "market flex" provisions in the Debt Commitment Letter), including: (A) maintaining in effect the Debt Commitment Letter until the funding of Parent, violate the Debt Financing at the Closing; (B) satisfying (or breach any Law, Organizational Documents or obtaining a waiver thereof) and causing to be satisfied all conditions applicable to Buyer to obtaining the provisions of any Contract Debt Financing and otherwise complying with its obligations under the Debt Commitment Letter and the definitive documents relating to which Parent or any of the Debt Financing; (C) entering into definitive agreements with respect to the Debt Financing; (D) enforcing its Affiliates is bound or jeopardize any attorney-client or other legal privilege, rights under the Debt Commitment Letter; and (eE) Parent will not be required to approach any landlord, consignee, customs broker, consummating the Debt Financing at or other similar third party prior to the Closing (it being understood that it is not a condition to discuss landlord waiversClosing under this Agreement for Buyer to obtain the Debt Financing or any Alternative Financing).
(ii) Buyer shall not permit any assignment, collateral access agreements amendment, supplement, replacement, restatement, waiver, substitution, or other similar agreements modification (and any Alternative Financing shall be deemed an assignment, amendment, supplement, replacement, restatement, waiver, substitution, or to consent other modification that is subject to the pre-filing requirements of UCC-1s this Section 6.08(d)(ii) of any Debt Commitment Letter or any definitive agreement related to the Debt Financing, in each case, without the Representative's prior written consent, if such assignment, amendment, supplement, replacement, restatement, waiver, substitution, or other modification (A) reduces the aggregate amount of the Debt Financing such that Buyer or the grant of Encumbrances on Company would not have aggregate proceeds necessary to complete the transaction, (B) imposes new or additional conditions or otherwise materially and adversely expands, amends or modifies any of the Assets conditions to the receipt of the Business prior Debt Financing at the Closing Date, (C) could reasonably be expected to (1) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) or the consummation of the Transactions materially less likely to occur or (2) impair, delay or prevent in any material respect the availability on the Closing Date of all or a portion of the Debt Financing contemplated by the Debt Commitment Letter to be funded on the Closing Date or (D) otherwise materially and adversely affects the ability of Buyer to enforce its rights under the Debt Commitment Letter or to consummate the transactions contemplated by this Agreement; provided, that without the consent of the Representative, Buyer may (x) correct typographical errors, (y) provide for the assignment of a portion of the commitments or obligations under the Debt Commitment Letter to additional agents, arrangers, lenders, bookrunners, syndication agents or similar entities or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto (including replacement of a lender) or (z) implement or exercise any of the "market flex" provisions contained in the Debt Commitment Letter. Upon any such assignment, amendment, supplement, replacement, restatement, waiver, substitution, or other modification of the Debt Commitment Letter in accordance with this Section 6.08, (i) Buyer shall promptly provide complete, correct and executed copies of the same (which shall include any documentation related to any Alternative Financing) to the ClosingRepresentative (including complete, correct and executed copies of all related fee letters, engagement letters, side letters, agreements, contracts and other arrangements) and (ii) the term "Debt Commitment Letter" shall mean the Debt Commitment Letter as so amended, supplemented or modified.
(iii) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions described in or contemplated by the Debt Commitment Letter (including the "market flex" provisions thereof), Buyer shall use its reasonable best efforts to, as promptly as practicable following the occurrence of such event (but not later than the date Buyer is required to consummate the Closing pursuant to Section 3.01), arrange to obtain, negotiate and enter into definitive agreements with respect to, alternative financing from alternative debt sources (the "Alternative Financing") in an amount and on terms sufficient to commence the transactions contemplated by this Agreement and not contain any conditions that would prevent, impede or delay in any material respect the Debt Financing. Notwithstanding The obligations under this Section 6.08 shall apply equally to any such Alternative Financing (including any new financing commitments) and all references herein and therein to the Debt Financing shall be deemed to include such Alternative Financing, all references therein to the Debt Commitment Letter or the definitive documents related to the Debt Financing shall include the applicable documents for the Alternative Financing and all references to the Debt Financing Sources shall include the persons providing or arranging the Alternative Financing.
(iv) Buyer will keep the Representative, Arsenal Blocker Seller and the Company reasonably informed on a current and timely basis of the status of Buyer's efforts to obtain the Debt Financing and to satisfy the conditions thereof, including advising and updating the Representative, Arsenal Blocker Seller and the Company, in a reasonable level of detail, with respect to status and proposed closing date. Without limiting the foregoing, except Buyer shall give the Representative prompt written notice (and in any event within three (3) Business Days) (A) of any written, or the knowledge of Buyer oral, notice by the lenders of a material breach, default, repudiation, cancellation or termination or if any Person attempts or purports to terminate, cancel or repudiate the Debt Commitment Letter, whether or not such attempted or purported termination, cancellation or repudiation is valid by any party to the Debt Commitment Letter or definitive documents relating to the Debt Financing of which Buyer becomes aware that would reasonably be expected to result in Buyer not receiving the proceeds of the Debt Financing on the Closing Date or any termination of the Debt Commitment Letter, (B) if and when Buyer becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter will not be available to consummate the Transactions to the extent such unavailability would prevent the consummation of the transactions contemplated by this Agreement or (C) if for any reason Buyer believes in good faith that Buyer will not be able to obtain, or there occurs any event or development that could reasonably be expected to materially and adversely impact the ability of Buyer to obtain, all or any portion of the Debt Financing on the terms, in the case manner or from the sources contemplated by the Debt Commitment Letter or the definitive documents related to the Debt Financing. As soon as reasonably practicable, after the Representative delivers to Buyer a written request, Buyer shall provide any information reasonably requested by the Representative relating to any of a willful breach by Parent, the failure by Parent circumstances referred to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the Closing6.08(d).
Appears in 1 contract
Debt Financing. Parent (a) Tyler acknowledges that it shall be fully responsible for obtaining the Debt Financing and shall use reasonable best efforts to arrange and obtain the Debt Financing on the terms and subject only to the conditions described in the Financing Letter.
(b) Subject to Section 7.2, NWS shall use its commercially reasonable best efforts to promptly provide, and shall cause cooperate in connection with the Purchased Companies and its and their respective Representatives to use their respectively commercially reasonable efforts to promptly provide, such assistance with Purchaser’s (or its Affiliates’) obtaining debt financing arrangement of the Debt Financing as is may be reasonably requested by Purchaser; provided that Tyler, including (ai) neither Parent nor any of its Affiliates will be required to pay any fee or incur any Liability participation in connection with any such financingmeetings, drafting sessions, presentations, road shows, and due diligence, (bii) Purchaser furnishing Tyler and the financing sources with financial and other pertinent information regarding NWS as may be reasonably requested by Tyler to consummate the Debt Financing, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act (other than Rule 3-10 of Regulation S-X), (iii) assisting Tyler and the financing sources in the preparation of informational and marketing materials and documents for any portion of the Debt Financing, (iv) reasonably cooperating with the marketing efforts of Tyler and the financing sources for any portion of the Debt Financing, (v) reasonably facilitating the identification of collateral, (vi) reasonably facilitating the provision of information for disclosure schedules and closing deliverables, in each case as customarily provided to lenders, and (vii) obtaining accountants’ comfort letters, accountants’ consent letters, legal opinions, surveys, and title insurance as reasonably requested by Tyler; provided, however, that Tyler shall promptlypay (and, upon request by Parentto the extent practicable, reimburse Parent for all reasonable and document in advance) any out-of-pocket costs and or expenses incurred in connection therewith (including reasonable attorneys’ fees) incurred by Parent including, any commitment or other fee or incur any of the Purchased Companies other liability in connection with the Debt Financing prior to the Effective Time); and, provided further, that such requested cooperation contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to does not unreasonably interfere with the Business or ongoing operations of Parent NWS. Tyler shall, promptly upon request by NWS, reimburse NWS for all reasonable out-of-pocket costs incurred by NWS in connection with such cooperation. Tyler shall indemnify and hold harmless NWS from and against any and all Losses suffered or any incurred by NWS in connection with the arrangement of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose Debt Financing and any information if such disclosure would, or take utilized in connection therewith.
(c) If any action if such action would, portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Financing Letter, Tyler shall use its reasonable discretion best efforts to promptly obtain alternative financing in an amount, together with cash of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to Tyler on the Closing Date, sufficient for Tyler to discuss landlord waivers, collateral access agreements or pay the Total Cash Consideration and to consummate the Merger and the other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances transactions contemplated by this Agreement on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the ClosingAgreement (an “Alternative Financing”).
Appears in 1 contract
Debt Financing. (a) Parent and Merger Sub shall use its their respective commercially reasonable efforts to (i) maintain in effect the Debt Commitment Letter, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Debt Financing set forth in the Debt Commitment Letter that are within their control, and (iii) arrange the Debt Financing at or promptly provideafter the Acceptance Time (with respect to amounts required to consummate the Offer) and at or prior to the Closing Date (with respect to amounts required to consummate the Merger and make such other payments required at the Effective Time pursuant to the terms hereof), including using their respective commercially reasonable efforts to: (A) enter into definitive agreements with respect thereto on the terms contained in the Debt Commitment Letter, (B) cause the Lenders and any other Debt Financing Source to fund the Debt Financing at or promptly after the Acceptance Time (with respect to amounts required to consummate the Offer) and at or prior to the Closing Date (with respect to amounts required to consummate the Merger and make such other payments required at the Effective Time pursuant to the terms hereof) and (C) seek to enforce its rights under the Debt Commitment Letter if in Parent’s reasonable judgment it is commercially reasonable to do so. Parent shall not, and shall cause Merger Sub not to, without the Purchased Companies and its and their respective Representatives to use their respectively commercially reasonable efforts to promptly provideprior written consent of the Company, such assistance with Purchaser’s amend, modify, supplement or replace (or its Affiliates’1) obtaining debt financing as is reasonably requested by Purchaser; provided that (a) neither Parent nor any of its Affiliates will be required to pay any fee or incur any Liability in connection with any such financing, (b) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent or any of the Purchased Companies conditions or contingencies to funding contained in connection with the cooperation Debt Commitment Letter, or (2) any other provision of the Debt Commitment Letter, in either case, to the extent such amendment, modification or supplement would reasonably be expected to have the effect of materially adversely affecting the ability of Parent or Merger Sub to timely consummate the transactions contemplated by this Section 5.16Agreement (it being understood that Parent and Merger Sub may (x) amend the Debt Commitment Letter to add lenders, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the Closing.date 39
Appears in 1 contract
Sources: Merger Agreement (CKX, Inc.)
Debt Financing. Parent 7.7.1 Sellers shall use its commercially reasonable efforts to promptly providedeliver on or prior to November 21, 2011, and shall cause deliver on or prior to December 21, 2011:
(i) the Purchased Companies Required Financial Information, and
(ii) management’s projections for the Company together with the assumptions utilized in preparing such projections for the fourth fiscal quarter of 2011 and its on an annual basis commencing with the 2012 fiscal year through the end of the 2016 fiscal year, Notwithstanding Section 4.1 of the Agreement, if Sellers have not delivered the Required Financial Information by November 21, 2011, Purchaser may extend the Closing Date to February 1, 2012 and their respective Representatives the Purchase Price shall not carry any additional interest until February 1, 2012.
7.7.2 Prior to the Closing, the Sellers shall use their respectively commercially reasonable efforts to promptly provideprocure that the Company and its selected representatives and advisors shall provide the Purchaser with reasonable and customary cooperation in connection with the arrangement of the Debt Financing, including by taking the following actions:
(i) causing ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (or any appropriate person replacing them) to be available, on reasonable advance notice, to participate in one due diligence session by teleconference of no more than two (2) hours in length related to the Debt Financing,
(ii) assisting the Purchaser in identifying the qualitative differences between the Accounting Principles and U.S. GAAP for the Required Financial Information assuming such assistance Required Financial Information were prepared in accordance with U.S. GAAP by helping to review the qualitative differences identified by the Purchaser and using reasonable efforts to answer any Purchaser questions related to such qualitative differences identified,
(iii) assisting in the preparation of customary “public side” and “private side” bank books, rating agency presentations, lender presentations, information memoranda and other customary marketing materials for the Debt Financing (the “Debt Financing Materials”) by using reasonable efforts to review and provide feedback on such Debt Financing Materials prepared by the Purchaser, and
(iv) together with the Purchaser and its advisers, requesting that the lenders under any existing debt instrument or credit facility, including the Credit Facility, in each case that need repaid in full at the Closing, provide debt payoff letters, releases of collateral and customary Swedish related documents in connection with the Purchaser’s (draw down of the Debt Financing on or its Affiliates’) obtaining debt financing as is reasonably requested by Purchaser; provided that (a) neither Parent nor any of its Affiliates will be required immediately prior to the Closing Date. Nothing contained in this Section 7.7 shall require the Sellers or the Company to pay any commitment or other fee or incur any Liability in connection with any such financing, (b) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent liability or any of the Purchased Companies indebtedness obligations in connection with the cooperation contemplated by this Section 5.16Debt Financing. The Sellers’ shall use commercially reasonable efforts to procure that the Company consents to the reasonable use of its logos, (c) any cooperation required pursuant to this Section 5.16 will be conducted strictly in connection with and necessary for the Debt Financing in a manner as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other customary for similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the Closingfinancing transactions.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Verifone Systems, Inc.)
Debt Financing. Parent shall use its commercially reasonable efforts to promptly provide, and shall cause the Purchased Companies and its and their respective Representatives to use their respectively commercially reasonable efforts to promptly provide, such assistance with Purchaser’s (or its Affiliates’) obtaining debt financing as is reasonably requested by Purchaser; provided that (a) neither Parent nor any of its Affiliates will The Founder and the Sponsors shall use their respective reasonable best efforts and cooperate in good faith to arrange debt financing (“Debt Financing”) for the Target to be required to pay any fee implemented through Holdco and Zhongshan SPV at or incur any Liability in connection following the Closing on market terms (as mutually agreed by the Parties). The Founder and the Sponsors shall coordinate with any such financing, banks and other financing sources identified by the Founder (bthe “Financing Banks”) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent or any of the Purchased Companies in connection with the cooperation contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilegeDebt Financing, and (e) Parent will not the Founder Parties and the Sponsors shall provide such assistance in connection with arranging the Debt Financing as may be required to approach any landlord, consignee, customs broker, or other similar third party prior to reasonably requested by the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the ClosingFounder. Notwithstanding the foregoing, except in the case Founder shall (i) consult with the Sponsors on the terms of a willful breach by Parentall Debt Financing documentation, the failure by Parent agreement of which shall be subject to complythe mutual consent of the Founder and the Sponsors, or cause (ii) not agree to any terms of the Purchased Companies or its or their respective representatives Debt Financing that would reasonably be expected to complydisproportionately (as compared to the Founder) and adversely impact the Sponsors without the consent of the Sponsors, (iii) circulate to the Sponsors all drafts of the Debt Financing documentation, (iv) inform the Sponsors of the status of discussions and negotiations with the terms set forth sources of the Debt Financing, and (v) include the Sponsors in this Section 5.16 such discussions and negotiations if so reasonably requested.
(b) Each of the Parties shall not constitute a basis for Purchaser to refuse (i) furnish the Financing Banks with financial and other pertinent information as may be reasonably requested by the Financing Banks as promptly as practicable, including all financial statements, business plans, forecasts and projections, and financial and other data of the type and form customarily required to consummate the Closingfacilities contemplated by the Debt Financing, subject to appropriate confidentiality undertakings, (ii) assisting with the preparation of materials for bank information memoranda and similar documents required in connection with the Debt Financing, and (iii) taking all corporate actions reasonably requested by the Financing Banks to permit the consummation of the Debt Financing, including facilitating the pledging of collateral and, in connection therewith, executing and delivering any pledge and security documents (including with respect to the securities of Holdco, Zhongshan SPV, BVI I, Parent and the Surviving Company), other definitive financing documents or other certificates, or documents as may be requested by the Financing Banks.
Appears in 1 contract
Debt Financing. (a) Prior to the Closing, the Company and Company Subsidiaries shall use their reasonable best efforts to provide all cooperation reasonably requested in writing by Parent and Buyer in connection with Parent and/or Buyer arranging debt financing in connection with the transactions contemplated by this Agreement, which debt financing may be incurred before or following the Closing (the “Debt Financing”), including all cooperation reasonably requested to enable Parent, Buyer and their Representatives to prepare financial statements, including pro forma financial statements, in compliance with applicable SEC requirements for use in a registered or unregistered offering of debt securities in connection with such Debt Financing and to enable accountants of Parent and/or the Company to audit or review such financial statements, including, if requested by Parent, using reasonable best efforts to (x) provide a customary representation letter in such form as is reasonably required by accountants of Parent and/or the Company, as applicable, with such facts and assumptions as reasonably determined by such accountants in order to make such certificate accurate, signed by the individual(s) responsible for the Company’s financial reporting, as prescribed by generally accepted auditing standards as promulgated by the Auditing Standards Divisions of the American Institute of Public Accountants in order to enable an independent public accountant to render an opinion on such financial statements, (y) cause the auditor of the Company’s financial statements to provide its consent to the inclusion of such report, without exception or qualification, with respect to the Audited Financial Statements in any offering document of the Parent or Buyer or any report of the Parent or Buyer filed with the SEC, and (z) to provide to Parent and its underwriters, or the equivalent in an unregistered offering of securities, appropriate comfort letters in accordance with the American Institute of Public Accountants’ professional standards and to participate in due diligence sessions customarily conducted in connection with the provision of comfort letters. In furtherance of the foregoing, the Company shall use its commercially reasonable best efforts to promptly provideprovide to Parent and Buyer the Company’s unaudited consolidated balance sheet as of September 30, 2017, and the related statements of income or operations for the three- and nine-month periods ended September 30, 2017 as soon as reasonably practicable following the end of the Company’s third quarter of 2017 period but in no event later than October 30, 2017.
(b) For the avoidance of doubt, nothing herein shall cause require the Purchased Companies and Company or any of the Company Subsidiaries to (A) waive or amend any terms of this Agreement or pay or agree to pay any fees or reimburse any expenses in connection with the Debt Financing contemplated by Section 5.12, (B) enter into any definitive agreement, document or instrument with respect to the Debt Financing contemplated by Section 5.12, (C) give any indemnities with respect to the Debt Financing contemplated by Section 5.12 that are effective prior to the Effective Time, (D) take any action with respect to the Debt Financing contemplated by Section 5.12 that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Company or the Company Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or any of the Company Subsidiaries, (E) provide any information the disclosure of which is prohibited or restricted under applicable Laws or is legally privileged (provided, further, that the Parties agree to collaborate in good faith to make alternative arrangements to allow for such access or disclosure in a manner that does not result in a violation of Law or loss of privilege), or (F) take any action that will conflict with or violate its and their respective Representatives organizational documents or any applicable Laws or would result in a violation or breach of, or default under, any Contract to use their respectively commercially reasonable efforts which the Company or any of the Company Subsidiaries is a party. Notwithstanding any other provision of this Agreement, nothing in this Agreement will require (A) any officer or Representative of the Company or any of the Company Subsidiaries to promptly provide(x) execute or deliver any definitive agreement, certificate, document, instrument or opinion in connection with the Debt Financing that would be effective prior to the Effective Time, or (y) take any other action pursuant to Section 5.12(a) that could reasonably be expected to result in personal liability to such assistance with Purchaser’s officer or Representative or that would be effective prior to the Effective Time, or (B) the members of the Company Board as of the date hereof to approve the Debt Financing or its Affiliates’any alternative financing or Contracts related thereto.
(c) obtaining debt financing as is reasonably requested All non-public or other confidential information provided by Purchaser; provided that (a) neither Parent nor the Company or any of its Affiliates Representatives pursuant to this Agreement will be required kept confidential in accordance with the Confidentiality Agreement, except that Parent, Buyer and Merger Sub will be permitted to pay disclose such information to any fee Debt Financing sources and other financial institutions and investors that are or incur may become parties to the Debt Financing and to any Liability underwriters, initial purchasers or placement agents in connection with any the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such financingPersons (i) agree to be bound by the Confidentiality Agreement as if parties thereto, or (bii) Purchaser shall promptlyare subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) If this Agreement is terminated, upon request by Parentthe Company, Parent and Buyer shall promptly (and in any event within thirty (30) calendar days of invoice) reimburse Parent the Company and the Company Subsidiaries for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ feeslegal fees and expenses) incurred by Parent or the Company and/or any of the Purchased Companies Company Subsidiaries in connection with providing the cooperation contemplated by Section 5.12(a) to the extent such expenses were in excess of the expenses the Company and the Company Subsidiaries would have incurred in the absence of the cooperation obligations in Section 5.12(a).
(e) Parent and Buyer shall indemnify and hold harmless the Company and the Company Subsidiaries, and each of their respective Representatives, from and against any and all losses, damages, claims, interest, costs or expenses (including legal fees and expenses), awards, judgments, penalties and amounts paid in settlement suffered or incurred by any of them in connection with the Debt Financing, including providing the support and cooperation contemplated by this Section 5.165.12(a) and any information utilized in connection therewith (other than written information provided by or on behalf of the Company, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent Company Subsidiaries or any of its Affiliates their respective Representatives for use in connection with the Debt Financing).
(including f) Parent, Buyer and Merger Sub each acknowledge and agree that (i) the Purchased Companies), obtaining of (dor failure to obtain) Parent will the Debt Financing or any other financing is not a condition to the Closing; (ii) the consummation of the transactions contemplated by this Agreement shall not be required delayed or postponed as a result of the obtaining of (or failure to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in obtain) the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilegeDebt Financing, and (eiii) Parent will not it shall continue to be required obligated to approach any landlord, consignee, customs broker, or other similar third party prior to consummate the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any transactions contemplated by this Agreement irrespective and independently of the Assets availability of the Business prior to Debt Financing or any other financing.
(g) Any breach of this Section 5.12 shall be deemed excluded for purposes of determining whether the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms conditions set forth in this either Section 5.16 shall not constitute a basis 6.2(b) or Section 6.3(b) have been satisfied, for Purchaser purposes of termination under Section 7.1(d), and for purposes of any indemnification pursuant to refuse to consummate the ClosingSection 8.2.
Appears in 1 contract
Sources: Merger Agreement (Teleflex Inc)
Debt Financing. Parent (a) From the date hereof until the Effective Time, the Company shall, and shall use its commercially reasonable best efforts to promptly provide, and shall cause the Purchased Companies and its and each of their respective Representatives to use their respectively commercially reasonable efforts to promptly provideofficers, directors, employees and representatives to, provide such assistance with Purchaser’s (or its Affiliates’) obtaining debt financing cooperation as is reasonably requested by Purchaser; Parent in connection with the arrangement of the Financing, including (A) causing appropriate officers and employees to be available, on a customary basis and on reasonable advance notice, to meet with prospective lenders and investors in meetings, drafting sessions, due diligence sessions, management presentations, road shows and sessions with rating agencies, (B) assisting with the preparation of materials for rating agency presentations, business projections and financial statements (including those required by the SEC), and assisting Parent in preparing offering memoranda, private placement memoranda, prospectuses and similar documents, (C) requesting its independent accountants to provide reasonable assistance to Parent, including requesting such accountants to provide consent to Parent to prepare and use their audit reports relating to the Company and any necessary "comfort letters," (D) forming, on or prior to the Closing Date, new wholly owned subsidiaries, and transferring assets into those subsidiaries, to the extent not prohibited by law or any contracts to which the Company is a party or is bound (provided that in the event a contract prohibits such transfer and the transfer cannot otherwise be structured in a manner to avoid conflict with the terms of such contract, the Company agrees to use reasonable efforts to obtain consents necessary to effectuate such transfers), and (aE) neither provide reasonable access to the Owned Real Property, in accordance with SECTION 4.2, during normal business hours to the extent necessary for Parent nor to obtain surveys, engineering reports, zoning reports, environmental reports and appraisals required by the Financing Commitments with respect to the Owned Real Property. Parent shall pay to the Company any costs or expenses incurred by the Company in connection with the foregoing.
(b) Notwithstanding the foregoing or SECTION 4.4 or 5.3(C), the parties acknowledge and agree that nothing in this Agreement shall (i) require the Company, any of its the Stockholders or any of their respective officers, directors or Affiliates will be required to pay (x) enter into or execute any fee commitment letter, underwriting or incur placement agreement, pledge or security document, loan agreement, note purchase agreement, registration rights agreement, indenture or any Liability other Contract, or any registration statement or other filing with the SEC, or any certificate or other document in connection with any such financing, (b) Purchaser shall promptly, upon request financing or other funds sought by Parent, reimburse Parent for all reasonable and document out-(y) commence or take any other action with respect to any tender offer for, or any consent with respect to, or any repayment of-pocket costs and expenses , or amendment or modification to, any debt securities or other indebtedness of the Company (other than ministerial actions, including reasonable attorneys’ feesfacilitating access to the trustee with respect to, or providing a list of the holders of, any such debt securities), or (z) incurred obtain any rating agency confirmations or approvals, (ii) require counsel to the Company or the Stockholders to deliver any legal opinion in connection with any financing or funds sought by Parent Parent, or (iii) require the Company or any of the Purchased Companies Stockholders, or any officer, director, employee, counsel or advisor thereof, to make any representation or warranty, incur any liability or provide for any indemnification or expense reimbursement in connection with the cooperation contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business financing or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach funds sought by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the Closing.
Appears in 1 contract
Debt Financing. Parent 8.15.1. Prior to the Closing, the Group Companies shall, and shall use its reasonable best efforts to cause their respective officers, directors, employees and representatives to, at ▇▇▇▇▇’s sole expense, cooperate with Buyer in connection with the Debt Financing as may be reasonably requested by ▇▇▇▇▇, including by using reasonable best efforts to:
(a) participate (and causing senior management and using commercially reasonable efforts to promptly providecause representatives and advisors to participate) in a reasonable number of lender meetings and presentations, due diligence sessions and shall cause the Purchased Companies sessions with ratings agencies, in each case, at reasonable times and its and their respective Representatives to use their respectively commercially with reasonable efforts to promptly provide, such assistance with Purchaser’s (or its Affiliates’) obtaining debt financing as is reasonably requested by Purchaser; provided that (a) neither Parent nor any of its Affiliates will be required to pay any fee or incur any Liability notice in connection with any of such financing, Debt Financing;
(b) Purchaser shall promptlyprovide Buyer and the Debt Financing Sources information reasonably necessary for the preparation of (A) confidential information memoranda, upon request by Parent, reimburse Parent for all reasonable lender presentations and document out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent similar marketing documents reasonably necessary or any customarily provided in connection with financings of the Purchased Companies type similar to the Debt Financing and (B) materials for rating agency presentations;
(c) execute and deliver any guarantee, collateral agreement, pledge agreement, security agreement, other definitive financing documents, or other certificates or documents as may be reasonably requested by Buyer and as may be necessary and customary in connection with the cooperation Debt Financing and otherwise facilitating the obtaining of guarantees and the creation and perfection of a security interest in the property and assets of the Group Companies; provided, that all such guarantees, security agreements and other documents with respect to the Group Companies and their respective assets shall be authorized and become effective only at, or as of, the Closing, and no legal opinions shall be required to be provided;
(d) take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Buyer that are necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof, together with the cash at the Group Companies, if any (not needed for other purposes), to be made available on the Closing Date to consummate the Closing and the other transactions contemplated by this Section 5.16Agreement;
(e) provide customary authorization and representation letters to the Debt Financing Sources, executed by or on behalf of the Company, authorizing the distribution of information provided by the Group Companies (csubject to customary confidentiality provisions and disclaimers) to prospective lenders or investors and containing customary representations to the Debt Financing Sources, including with respect to the presence or absence of material nonpublic information about the Group Companies and that such information (other than customary exceptions) to the extent provided by the Group Companies does not contain a material misstatement or omission that would make the statements contained therein materially misleading in light of the circumstances under which they are made;
(f) provide, at least four (4) Business Days prior to the Closing Date, all documentation and other information as is required by applicable “know your customer”, beneficial ownership and anti-money laundering rules and regulations including the USA PATRIOT Act to the extent requested at least eight (8) Business Days prior to the Closing Date; and
(g) timely deliver any notices of prepayment, redemption or termination in respect of the Closing Indebtedness and assisting with the repayment in full of all Indebtedness of the Group Companies required to be repaid on or prior to the Closing and the termination and release of all related guarantees and liens (including by obtaining the fully executed Debt Payoff Letter (at least three (3) Business Days in advance of Closing); provided, that such requested cooperation required pursuant to this Section 5.16 will be conducted in a manner as to does not unreasonably interfere with the Business or ongoing operations of Parent the Group Companies and (a) the Group Companies shall not be required to incur any liability or pay any fee in connection with the Debt Financing prior to the Closing, (b) the pre-Closing board of its Affiliates directors of any Group Company shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained unless such Persons continue in such offices after the Closing and such resolutions are effective substantially simultaneously with the Closing or incur any personal liability, (c) the Group Companies shall not be required to execute prior to the Closing any definitive financing documents that will be effective prior to Closing, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Purchased Companies)Debt Financing, other than pursuant to this Section 8.15.1, (d) Parent will the Group Companies shall not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent corporate actions that will not be required to approach any landlord, consignee, customs broker, or other similar third party effective prior to the Closing to discuss landlord waiverspermit the consummation of the Debt Financing, collateral access agreements (e) the Group Companies shall not be required to provide cooperation that the Company reasonably believes would (i) violate any Material Contract or any Law (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such Material Contract or Law), (ii) result in the loss of attorney-client privilege or other similar agreements legal privilege (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such privilege) or (iii) cause any of Company’s representations or warranties in this Agreement to be breached or any condition precedent set forth in this Agreement to fail to be satisfied and (f) the Group Companies shall not be required to consent to the pre-filing of UCC-1s or the grant of Encumbrances liens on any of the Assets of the Business Group Companies’ assets prior to the Closing. Notwithstanding The Group Companies hereby consent to the foregoinguse of the Group Companies’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended to, or reasonably likely to, harm, disparage or otherwise adversely affect the Group Companies or the reputation or goodwill of the Group Companies. Buyer shall indemnify, defend and hold harmless the pre-Closing directors and officers of the Group Companies from and against any liability or obligation to providers of the Debt Financing in connection with the Debt Financing and any information provided in connection therewith in connection with any cooperation pursuant to this Section 8.15.1, except to the extent such liability or obligation (i) results from information related to the Group Companies provided by or on behalf of the Group Companies specifically for use in connection with the case Debt Financing (ii) is determined by a court of competent jurisdiction in a final non-appealable judgment to result from the willful misconduct, gross negligence or bad faith of the Group Companies or, in each case, their respective officers, directors, employees, accountants, consultants, legal counsel, agents or other representatives or (iii) results from the material breach of this Agreement by Parentthe Group Companies and/or any of their Affiliates. If the Closing does not occur, ▇▇▇▇▇ shall promptly upon the Company’s request reimburse the Company for all reasonable out-of-pocket and documented costs and expenses (including reasonable and documented fees and disbursements of outside counsel) incurred by the Group Companies in connection with such cooperation pursuant to this Section 8.15.1. All non-public or otherwise confidential information regarding the Group Companies obtained by Buyer pursuant to this Section 8.15.1 shall be kept confidential in accordance with the terms of the Confidentiality Agreement; provided that Buyer shall be permitted to disclose such information (i) to the Debt Financing Sources, rating agencies and prospective lenders and investors of the Debt Financing or any permitted replacement, amendment, modification thereto, in each case, subject to customary confidentiality protections and (ii) as required by the Exchange Act, the failure by Parent rules and regulations of the SEC or any rule or regulation of any securities exchange upon which the securities of Buyer or any of its Affiliates are listed or traded.
8.15.2. The Company (i) hereby consents to complythe inclusion of the financial statements referred to in Section 3.5 and Section 8.16, as applicable, prior to the Closing in (A) any lender presentations, bank information memoranda, rating agency presentations and similar documents customarily used in connection with the Debt Financing and (B) any public disclosure on Form 8-K to the extent required to comply with Regulation FD as a result of the inclusion of such financial statements pursuant to clause (A).
8.15.3. Buyer shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the Purchased Companies proceeds of the Debt Financing in an amount sufficient, when combined with the aggregate amount of available cash or other sources of liquidity, to fund the Required Uses, on the terms and conditions described in the Debt Commitment Letter or, if available, on other terms that (A) are acceptable to Buyer in its sole discretion and (B) would not prevent, or make materially less likely to occur, the funding of the Debt Financing at the Closing in an amount sufficient, when combined with the aggregate amount of available cash or other sources of liquidity, to fund the Required Uses, including using reasonable best efforts to (a) satisfy on a timely basis all conditions set forth in the Debt Commitment Letter applicable to Buyer, (b) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Commitment Letter (including any related flex provisions) or on such other terms and (c) consummate the Debt Financing at or prior to the Closing in an amount sufficient, when combined with the aggregate amount of available cash or other sources of liquidity, to fund the Required Uses. Buyer shall give Seller prompt notice of (and in any event no later than five (5) Business Days following) (i) any breach or default under the Debt Commitment Letter of which Buyer becomes aware, and (ii) any termination, repudiation, rescission, cancellation or expiration of the Debt Commitment Letter, in each case, if such breach, default, termination, repudiation, rescission, cancellation or expiration would materially adversely affect the availability of the Debt Financing at the Closing in an amount sufficient, when combined with the aggregate amount of available cash or other sources of liquidity, to fund the Required Uses (but, in each case, excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing of the definitive agreements with respect to the Debt Financing); provided, that in no event shall Buyer be required to share any information with Seller, the Company or their respective representatives Affiliates or Representatives that is subject to complyattorney-client or other privilege. Upon the reasonable request of Seller, Buyer shall keep the Company and Seller informed on a reasonably current basis in reasonable detail of the status of ▇▇▇▇▇’s efforts to arrange the Debt Financing or Alternative Financing. If any portion of the Debt Financing under the Debt Commitment Letter becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter in an amount, when combined with the aggregate amount of available cash or other sources of liquidity, necessary to fund the Required Uses, Buyer shall use reasonable best efforts to obtain alternative financing, including from the same or alternative sources (“Alternative Financing”) as promptly as practicable following the occurrence of such event and the provisions of this Section 8.15.3 shall be applicable to the Alternative Financing and such Alternative Financing shall not impose any new or additional condition or otherwise expand any condition to draw that would limit the availability thereof at the Closing, provided, that, in no event shall Buyer be required to, and in no event shall its reasonable best efforts be deemed or construed to require it to, obtain alternative financing that (x) includes terms and conditions that are less favorable in any material respect to Buyer than the terms and conditions set forth in the Debt Commitment Letter as in effect on the date of this Section 5.16 Agreement (including, as necessary, taking into account any “market flex” provisions applicable thereto contained in the fee letter related to the Debt Commitment Letter) or (y) would require it to pay any fees or agree to pay any interest rate amounts or original issue discounts, in either case, in excess of those contemplated by the Debt Commitment Letter as in effect on the date of this Agreement (including, as necessary, taking into account any “market flex” provisions applicable thereto contained in the fee letter related to the Debt Commitment Letter). Buyer shall (1) upon satisfaction of the conditions thereunder, enforce in all material respects its rights under the Debt Commitment Letter, (2) not constitute withdraw the LCT Election (as defined in the Buyer Credit Agreement) made in respect of its acquisition of the Company pursuant to the Debt Commitment Letter and (3) not consent to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter, the fee letter referred to in the Debt Commitment Letter or the Buyer Credit Agreement, in each case to the extent in a basis for Purchaser manner that (i) would prevent, or make materially less likely to refuse occur, the funding of the Debt Financing under the Debt Commitment Letter at the Closing in an amount sufficient, when combined with the aggregate amount of available cash or other sources of liquidity, to fund the Required Uses or (ii) materially adversely impact the ability of Buyer, in each case, to enforce its rights under the Debt Commitment Letter or the definitive agreements with respect to the Debt Financing, as applicable, or to consummate the transactions contemplated by this Agreement at the Closing., without the prior written consent of Seller (such consent not to be unreasonably withheld, conditioned or delayed); provided, that, for the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, (x) Buyer may amend the Debt Commitment Letter and any fee letter to add lenders, arrangers, bookrunners, agents or similar entities who have not executed the Debt Commitment Letter as of the date of this Agreement and (y) Buyer may amend, restate, amend and restate, refinance or replace the Buyer Credit Agreement (and replace the Debt Commitment Letter in effect at such time by virtue of such amendment, restatement, amendment and restatement, refinancing or replacement of the Buyer Credit Agreement) and terminate or reduce the commitments under any Debt Commitment Letter so long as any of (1) after giving effect thereto, Buyer has (and will have at all times through the Closing) available cash or other sources of liquidity in an amount sufficient to pay in cash all of the Required Uses or (2) Buyer shall have delivered a copy of a fully executed replacement Debt Commitment Letter, together with a true and complete copy of any fee letter related thereto (provided that solely the fee amounts, pricing caps and certain economic terms of any “flex” provisions specified in the fee letter may have been redacted in a customary manner so long as no such redaction covers terms that affect the conditionality, enforceability or availability of the full amount of the Debt Financing on the Closing Date or otherwise limit, prevent, impede or delay the consummation of the Debt Financing on the Closing Date), which shall have the Specified Terms or (3) Seller shall have given prior written consent thereto (such consent not to be unreasonably withheld, conditioned or delayed). As applicable, references in the Agreement (other than with respect to the representations in this Agreement made by Buyer that speak as of the date hereof) to Debt Financing shall include Alternative Financing and any replacement Debt Commitment Letter referred to in clause (2) of the prov
Appears in 1 contract
Debt Financing. (i) Parent shall use keep the Company (on behalf of the Sellers) informed of the status of its commercially reasonable efforts to promptly providearrange any Debt Financing (including providing the Company (on behalf of the Sellers) with copies of draft and definitive agreements and other documents related to such Debt Financing reasonably requested by the Sellers, subject to the terms of applicable confidentiality undertakings). Each of Parent and EuCo shall, and shall cause the Purchased Companies and its and their respective Representatives to use their respectively commercially reasonable efforts to promptly provide, such assistance with Purchaser’s (or its Affiliates’) obtaining debt financing as is reasonably requested by Purchaser; provided that (a) neither Parent nor any each of its Affiliates will be required to, use its reasonable best efforts to pay (i) consult with the Sellers and their Representatives in connection with the timing, marketing and syndication of any Debt Financing and the negotiation of the definitive agreements with respect to any Debt Financing, and (ii) provide the Company (on behalf of the Sellers) and its Representatives with a reasonable opportunity to review and comment on any financing documents (and drafts thereof, including fee or incur any Liability letters) in connection with any Debt Financing; provided, however, that neither Parent nor EuCo shall in any event be required to see that any such financingadditions, deletions or changes are incorporated in the definitive versions of such financing documents.
(ii) The Sellers shall direct and shall cause the Acquired Companies to, at Parent’s sole cost and expense, use their reasonable best efforts to cooperate with the Buyers and their authorized Representatives in connection with the arrangement of any Debt Financing, including (A) participating on reasonable advance notice, in a reasonable number of meetings and at reasonable locations, with respect to drafting sessions, presentations, road shows, sessions with rating agencies and due diligence, (bB) Purchaser furnishing such financial and other information as may be reasonably requested by the Buyers in connection with such Debt Financing and (C) providing assistance in respect of the preparation of any underwriting or placement agreements, informational and marketing materials, and pledge and security documents and other definitive financing documents; provided, that, in each of (A) through (C), (w) any private placement memoranda, offering memoranda or prospectuses need not be issued by any Acquired Company prior to the Closing Date, (x) no member of the Seller Group shall promptlybe required to become subject to any obligations or liabilities with respect to such agreements or documents, upon request by Parent(y) no Acquired Company shall be required to become subject to any obligations or liabilities with respect to such agreements or documents prior to the Closing Date and (z) nothing shall obligate (1) any member of the Seller Group to provide a solvency certificate or any similar certificate, to declare or make any determinations with respect to any dividends or to provide any information that would violate any applicable obligations of confidentiality or result in a violation of applicable Law or loss of any privilege or (2) any Acquired Company to provide a solvency certificate or any similar certificate, to declare or make any determinations with respect to any dividends or to provide any information that would violate any applicable obligations of confidentiality or result in a violation of applicable Law or loss of any privilege. Any information provided to the Buyers pursuant to this Section 6.11(b)(ii) shall be subject to the Confidentiality Agreement. Parent shall promptly reimburse Parent the Sellers for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent or any such members of the Purchased Seller Group and the Acquired Companies in connection with such cooperation. The Company (on behalf of the cooperation contemplated by this Section 5.16Sellers) and its Representatives shall be given a reasonable opportunity to review and comment on any financing documents (and drafts thereof, (cincluding fee letters) and any cooperation required pursuant materials that are to this Section 5.16 will be presented during any meetings conducted in a manner as connection with any Debt Financing at which they are present, and Parent shall give due consideration to not unreasonably interfere all reasonable additions, deletions or changes suggested by the Company (on behalf of the Sellers) and its Representatives with respect to the Business financing documents; provided, however, that neither Parent nor EuCo shall in any event be required to see that any such additions, deletions or operations changes are incorporated in the definitive versions of Parent such financing documents. The Buyers acknowledge and agree that no member of the Seller Group or any of its their respective Affiliates (including and Representatives shall have any responsibility for, or incur any liability to any Person under or in connection with, the Purchased Companiesarrangement of any Debt Financing that Parent or EuCo may raise in connection with the Transactions unless attributable to their gross negligence or a material breach of their obligations under this Section 6.11(b)(ii). Notwithstanding anything to the contrary herein, the condition set forth in Section 9.2(b), (d) as it applies to the Sellers’ obligations under this Section 6.11(b)(ii), shall be deemed satisfied unless any Debt Financing has not been obtained primarily as a result of the Sellers’ gross negligence or willful and material breach of its obligations under this Section 6.11(b)(ii). Parent will not be required to disclose and EuCo shall, on a joint and several basis, indemnify and hold harmless the members of the Seller Group and the Acquired Companies, their Subsidiaries and their respective Representatives from and against any and all Damages suffered or permit to disclose incurred by them in connection with the arrangement of any Debt Financing and any information if such disclosure would, utilized in connection therewith unless attributable to the Sellers’ gross negligence or take any action if such action wouldwillful and material breach of their obligations under this Section 6.11(b)(ii).
(iii) Notwithstanding anything to the contrary contained herein, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which event Parent or any of its Affiliates is bound Affiliate provides (or jeopardize any attorney-client or other legal privilegeirrevocably commits in writing to provide) funds sufficient to satisfy the ABL European Obligations and the Liz Obligations (or, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parentthe Liz Obligations, the failure by such obligations are otherwise satisfied pursuant to Section 2.4(i)), (A) Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in shall have no obligations under Section 5.7 and this Section 5.16 6.11 (other than the final sentence of Section 6.11(b)(ii)), and such provisions shall not constitute a basis for Purchaser be disregarded, in each case to refuse the extent related to consummate any Debt Financing and (B) the ClosingSellers shall have no obligations under this Section 6.11.
Appears in 1 contract
Sources: Merger Agreement (Claiborne Liz Inc)
Debt Financing. Parent shall use its commercially reasonable efforts (a) Parents and Genco Holdings agree to promptly provide, and shall cause the Purchased Companies and its each Company and their respective Representatives to provide, all cooperation reasonably requested by Buyer and necessary in connection with the arrangement of the Debt Financing, including (i) participation in meetings, drafting sessions, due diligence sessions, management presentation sessions, "road shows" and sessions with rating agencies, (ii) preparation by Genco Holdings of business projections, financial statements, offering memoranda, private placement memoranda, prospectuses and similar documents and (iii) execution and delivery by the Companies of any underwriting or placement agreements, pledge and security documents, other definitive financing documents, including any indemnity agreements, or other requested certificates or documents, including a certificate of the chief financial officers of any Company with respect to solvency matters, comfort letters of accountants, consents of accountants for use of their respectively reports in any materials relating to the financing to be used in connection with the transactions contemplated by this Agreement, legal opinions, engineering reports, environmental reports, surveys and title insurance as may be reasonably requested by Buyer, provided, however, that no such agreements or documents shall impose any monetary obligation or liability (i) on the Companies (excluding, for the avoidance of doubt, the Non-STP Assets and Liabilities in any Company acquired in the Non-STP Acquisition) prior to the STP Acquisition Closing other than payment obligations under the Overnight Bridge Loan, or (ii) on CenterPoint or any of its affiliates other than the Companies. Parents and Genco Holdings shall use commercially reasonable efforts to promptly cause Deloitte & Touche LLP, the independent auditors of the Companies, to provide any unqualified opinions, consents or customary comfort letters with respect to the financial statements needed in connection with the Debt Financing. Genco Holdings agrees to allow Buyer's accounting representatives the opportunity to review the financial statements in draft form and to allow such representatives access to each Company and supporting documentation with respect to the preparation of such financial statements and to use commercially reasonable efforts to cause its independent auditors to provide reasonable access to their working papers relating to procedures performed with respect to such financial statements. Buyer shall keep CenterPoint reasonably apprised of the status of all material matters relating to the arrangement of the Debt Financing and shall give CenterPoint and Genco Holdings prompt written notice of (i) any material breach by any party of the Debt Financing Letter (or any definitive agreements entered into pursuant thereto) or (ii) any termination of the Debt Financing Letter.
(b) Without limiting the generality of the provisions of Section 6.7(a), to the extent reasonably required in connection with the Debt Financing, Genco Holdings shall use commercially reasonable efforts to provide, or cause each of the Company and their respective Representatives to provide, the following:
(1) for each tract of Real Property constituting a power generating site and the power generating assets located thereon owned by one of the Companies ("Plant Real Property"), and for the Energy Development Center, Texas standard form owner's (with respect to the portion thereof constituting Owned Real Property) and leasehold (with respect to the portion thereof constituting Leased Real Property) title insurance policies and, if applicable, a Texas standard form mortgagee's policy of title insurance reasonably satisfactory to Buyer's sources of Debt Financing ("BUYER'S LENDER") from one or more nationally recognized title companies satisfactory to Buyer, Genco Holdings and CenterPoint (the "TITLE COMPANY"), with each such assistance with Purchaser’s policy (or its Affiliates’A) obtaining debt financing dated as is of the Public Company Merger Closing Date, (B) in an amount reasonably acceptable to Buyer, (C) accompanied by copies of all documents referenced as exceptions to title, (D) insuring good, valid and indefeasible fee simple title to the Owned Real Property and good, valid and indefeasible leasehold interest in the Leased Real Property in one of the Companies subject only to the Permitted Liens and such matters as may be reasonably requested by PurchaserBuyer, (E) naming such Company as "insured" and (F) containing such other available endorsements (including, without limitation, non-imputation endorsements) and affirmative coverages as Buyer may reasonably request, and (2) duly executed affidavits and other documents executed by the Companies, consistent with local practice, as are necessary to induce the Title Company to issue the policies, endorsements and affirmative coverages described in the manner set forth above in subclause (1);
(ii) a new or recertified survey for each Plant Real Property and the Energy Development Center (a "SURVEY") of the type and with such detail as a reasonably prudent financial institution making a project financing loan for existing electric power generating plants would require (the "SURVEY STANDARD"), prepared or recertified on or after the date of this Agreement by land surveyors licensed in the states in which the Owned Real Property is located, which Surveys have been certified or recertified by said surveyors to each Company, Buyer, Buyer's Lender and, to the extent necessary to satisfy the Survey Standard set forth above, show the following items: (A) no material violation of any setback or building line requirement (whether such requirements are imposed by Law or deed or plat), unless the Title Company is willing and able to insure over such violation; provided (B) no material encroachment by improvements located on adjoining properties onto any material portion of any Plant Real Property or the Energy Development Center, or by improvements located on any material portion of Plant Real Property or the Energy Development Center, onto adjoining properties, easements, utilities or rights of way, unless the Title Company is willing and able to insure over such encroachment; (C) adequate means of ingress and egress to and from each Plant Real Property or the Energy Development Center; and (D) the CEHE Land (if any) adjacent to each tract of Owned Real Property constituting Plant Real Property;
(iii) a current estoppel certificate, in form reasonably satisfactory to Buyer, for each Lease, from each lessor thereunder; and
(iv) for all Real Property other than Plant Real Property and the Energy Development Center, such evidence of title as a reasonably prudent financial institution making a project financing loan for an existing portfolio of electric power generating assets would require.
(c) Buyer shall use commercially reasonable efforts to arrange the Debt Financing on the terms and conditions described in the Debt Financing Letter, including using commercially reasonable efforts (i) to negotiate definitive agreements with respect thereto on the terms and conditions contained therein and (ii) to satisfy all conditions applicable to Buyer in such definitive agreements that are within its control. In the event any portion of the Debt Financing becomes unavailable in the manner or from the sources contemplated in the Debt Financing Letter, Buyer shall use commercially reasonable efforts to arrange any such portion from alternative sources on terms and conditions which are, in the reasonable judgment of Buyer, comparable or more favorable (ato Buyer) neither Parent nor in the aggregate thereto, and to the extent that any of its Affiliates will be required terms and conditions are not set forth in the Debt Financing Letter, on terms and conditions reasonably satisfactory to pay Buyer.
(d) CenterPoint and Genco Holdings shall use commercially reasonable efforts to obtain any fee waivers, amendments, modifications or incur any Liability supplements necessary in connection with any such financingthe transactions contemplated by this Agreement to the Credit Agreement or the Credit Agreement, dated October 7, 2003, among CenterPoint, as Borrower, and JPMorgan Chase Bank, as Administrative Agent.
(be) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable and document All documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) reasonably incurred by Parent Parents or any of the Purchased Companies in connection complying with the cooperation contemplated by this Section 5.16Sections 6.7(a), (b) or (c) any cooperation required pursuant to shall be paid by Buyer, unless this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates Agreement is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party terminated prior to the Closing Public Company Merger Effective Time (i) under circumstances in which Buyer would have the right to discuss landlord waivers, collateral access agreements terminate this Agreement under Section 10.1(c) or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any (ii) as a result of the Assets failure of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms conditions set forth in this Section 5.16 8.3(a) or 8.3(b) to be satisfied. All documented out-of-pocket costs and expenses incurred reasonably by Genco Holdings in complying with Section 6.7(d) shall not constitute a basis for Purchaser to refuse to consummate the Closingbe paid by CenterPoint.
Appears in 1 contract
Debt Financing. Parent (i) Prior to Closing, the Company shall, and shall cause its Subsidiaries to, use its commercially reasonable efforts to provide (or cause its Subsidiaries to provide), in each case at Parent’s sole cost and expense, such customary cooperation in connection with the offering, arrangement, syndication, consummation or issuance of any debt, equity or equity-linked financing deemed necessary or appropriate by Parent, including, among other things, any debt or equity financing to be incurred or contemplated to be incurred in connection with the Transactions, the Acquired Companies and the Real Properties effective as of or after the Closing, as reasonably requested in writing (email being sufficient) by Parent (collectively, the “Debt Financing”); provided that the Company shall in no event be required to provide (or cause its Subsidiaries to provide) such assistance that shall unreasonably interfere with its or its Subsidiaries’ business operations. Such assistance shall include using commercially reasonable efforts to do the following as promptly provideas reasonably practicable after P▇▇▇▇▇’s written request (email being sufficient), each of which with reasonable prior notice and at Parent’s sole cost and expense:
(A) make employees of the Company with appropriate seniority and expertise available to participate in a reasonable number of roadshows, due diligence sessions, drafting sessions, meetings (including one-on-one meetings or conference calls with providers of Debt Financing), rating agency presentations and other syndication activities and presentations with prospective lenders at reasonable times and locations mutually agreed; provided that any such meeting or communication may be conducted virtually by videoconference or other media;
(B) provide reasonable and customary assistance to Parent with the preparation of customary offering documents, offering memoranda, syndication materials, information memoranda, lender presentations, materials for ratings agency presentations, private placement memoranda, bank information memoranda and similar documents reasonably necessary in connection with the Debt Financing and provide reasonable cooperation with the due diligence efforts of any source of any Debt Financing to the extent reasonable and customary; in each case in this clause: (x) subject to customary confidentiality provisions and disclaimers, (y) as reasonably requested by P▇▇▇▇▇ and (z) limited to information to be contained therein with respect to the Acquired Companies or the Owned Real Property and Leasehold Real Property;
(C) furnish Parent, reasonably promptly upon written request, with such historical and projected financial, statistical and other pertinent information relating to the Acquired Companies as may be reasonably requested by Parent, as is usual and customary for Debt Financings and reasonably available and prepared by or for the Acquired Companies in the ordinary course of business; provided that Parent shall be solely responsible for the contents (other than historical information of the Company and its Subsidiaries) and determination of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information;
(D) assist with the preparation of customary definitive loan documentation contemplated by the Debt Financing (including schedules), including any customary guarantee, pledge and security documents (provided that any such documents or agreements and any obligations contained in such documents shall be effective no earlier than as of the Effective Time);
(E) provide to Parent upon reasonable written request all documentation and other information with respect to the Acquired Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act in connection with the Debt Financing, in each case as reasonably requested by Parent at least five (5) Business Days prior to the Closing Date;
(F) cooperate in connection with the repayment or defeasance of any existing Indebtedness of the Acquired Companies as of, and subject to occurrence of, the Closing and the release of related Liens following the repayment in full of such Indebtedness, including using commercially reasonable efforts to deliver such customary payoff, defeasance or similar notices within the time periods contemplated under any existing loans of the Acquired Companies as are reasonably requested by Parent (provided that the Company shall not be required to deliver any notices that are not conditioned on, and subject to the occurrence of, the Closing);
(G) cooperate with obtaining customary title insurance with respect to each material Real Property as reasonably requested by P▇▇▇▇▇;
(H) provide reasonable and customary assistance with respect to attempting to obtain any third-party consents associated with the delivery of guarantees and granting of mortgages, pledges and security interests in collateral for the Debt Financing;
(I) cause the Purchased Companies Company’s independent auditors to deliver customary “comfort letters” and customary consents to the use of accountants’ audit reports in connection with the Debt Financing, to the extent such “comfort letters” are required to be delivered to the applicable underwriters, initial purchasers or placement agents in connection with such Debt Financing;
(J) provide customary authorization letters authorizing the distribution of Company information to prospective lenders in connection with a syndicated bank financing; provided that such customary authorization letters (or the bank information memoranda in which such letters are included) shall include customary language that exculpates the Company, each of its Subsidiaries and their respective Representatives and Affiliates from any liability in connection with the use or misuse by the recipients thereof of the information set forth in any such bank information memoranda or similar memoranda or report distributed in connection therewith;
(K) consent to the use their respectively commercially of the Acquired Company’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 the Acquired Company’s reputation or goodwill;
(L) reasonably cooperate with the marketing efforts of Parent and its Financing Sources for any Debt Financing to be raised by P▇▇▇▇▇ to complete the Transactions;
(M) as may be reasonably requested by P▇▇▇▇▇, following the obtainment of the Required Company Shareholder Approval, form new direct or indirect wholly-owned Subsidiaries of the Company pursuant to documentation reasonably satisfactory to Parent and the Company;
(N) as may be reasonably requested by Parent, and no earlier than immediately prior to the Effective Time on the Closing Date, and provided such actions would not adversely affect the Tax status of the Company or any of its Subsidiaries or cause the Company or any of its Subsidiaries to be subject to additional Taxes or otherwise suffer or incur any amounts that are not indemnified by Parent under Section 6.17(a)(iii), transfer or otherwise restructure its ownership of existing Subsidiaries of the Company, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and the Company;
(O) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, attempt to obtain estoppels and certificates from tenants, lenders, managers, franchisors, ground lessors, ground lessees and counterparties to reciprocal easement agreements, declarations and similar agreements in form and substance reasonably satisfactory to any potential Financing Source;
(P) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, provide customary and reasonable assistance to allow Parent and its Representatives to conduct customary appraisal and non-invasive environmental and engineering inspections of each Owned Real Property and, subject to obtaining required third-party consents with respect thereto (which the Company shall use reasonable efforts to promptly provide, such assistance with Purchaser’s (or its Affiliates’) obtaining debt financing as is obtain to the extent reasonably requested by PurchaserParent and required in connection with such inspections), Leasehold Real Property (provided, however, that (x) neither Parent nor its Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such Owned Real Property or Leasehold Real Property, (y) Parent shall schedule and coordinate all inspections with the Company in accordance with Section 6.05 and (z) the Company shall be entitled to have representatives present at all times during any such inspection); and
(Q) to the extent necessary or advisable, reasonably cooperate to facilitate, effective no earlier than the Closing, the execution and delivery of definitive financing, pledge, security and guarantee documents reasonably requested by Parent and required in connection with the Debt Financing, including customary indemnities and bring down certificates issued in connection with a securitization of the Debt Financing; provided that (av) neither Parent the Company nor any of its Affiliates will be required to pay make any fee or incur any Liability filings with the SEC in connection with any such financingDebt Financing (other than in any applicable proxy statement), (bw) Purchaser nothing in this Section 6.17 shall promptly, upon request by Parentrequire any such action to the extent it would (1) unreasonably interfere with the business or operations of the Acquired Companies or require the Acquired Companies to agree to pay any fees, reimburse any expenses or give any indemnities or otherwise incur any liability, in any case prior to the Closing, or for which Parent does not promptly reimburse or indemnify it, as the case may be, under this Agreement, (2) require any Acquired Company or its Representatives to execute, deliver, enter into or perform any Financing Document (other than with respect to customary authorization letters with respect to bank information memoranda referred to above) that is effective prior to the Closing or that is not contingent on Closing or (3) require any officer, director or other Representative of the Company or any of its Subsidiaries to deliver any certificate that such officer, director or other Representative reasonably believes, in good faith, contains any untrue certifications, (x) none of the general partners or board of directors (or other similar governing body) or committee or subcommittee thereof of any Acquired Company shall be required to adopt resolutions approving any Financing Documents that is effective prior to the Closing unless contingent on Closing (and any such adoption or approval at Closing shall be performed by such general partner, board of directors (or other similar governing body) or committee or subcommittee thereof as constituted after the Effective Time and Closing), (y) the Company’s obligations under this Section 6.17 shall be subject to Persons being bound by confidentiality agreements in accordance with customary market practice, and (z) none of the Acquired Companies shall be required to provide any information or take any action to the extent it would (1) cause significant competitive harm to any Acquired Company if the Transactions are not consummated, (2) violate, conflict with, breach or result in a default under, or that is prohibited or restricted by, Applicable Law or its Organizational Documents, (3) jeopardize any attorney-client, attorney work product or other legal privilege or similar protection (provided that the Company shall use reasonable efforts to allow access to such information in a manner that does not result in the events set out in this clause (3)), (4) violate any applicable confidentiality obligation of any Acquired Company, (5) require any Acquired Company to waive or amend any terms of this Agreement, (6) require any Acquired Company or any of its Affiliates to incur any liability or make any payment that is not reimbursed or indemnified by Parent under Section 6.17(a)(iii) or enter into any Contract that is not contingent on Closing, (7) reasonably be expected to constitute a violation or breach of, or default under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of any Company Material Contract binding upon such Person, (8) result in the creation or imposition of any Lien on any asset of such Person (except any Lien on any of the Acquired Company’s respective assets that becomes effective only upon the Closing), (9) result in any significant or unreasonable interference with the prompt and timely discharge of the duties of any Acquired Company’s or any of its Affiliates’ directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives, (10) result in any Acquired Company’s or any of its Affiliates’ directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives incurring any personal liability with respect to any matters relating to the Debt Financing or (11) result in any condition to Closing set forth in Article VII to fail to be satisfied by the End Date or otherwise result in a breach of this Agreement by any Acquired Company. Notwithstanding anything to the contrary in this Section 6.17(a)(i), the condition set forth in Section 7.02(b), as it applies to the Company’s obligations under this Section 6.17(a)(i), shall automatically be deemed satisfied, except to the extent the Company has committed a Willful Breach of its obligations under this Section 6.17(a)(i), Parent has provided to the Company written notice of such breach within ten (10) Business Days of first becoming aware of such breach and the Company fails to cure such breach by the earlier of ten (10) Business Days after such notice is provided or the End Date. In no event shall the Company be in breach of this Agreement for all reasonable and document out-of-pocket costs and expenses the failure to (including reasonable attorneys’ feesA) incurred deliver any financial or other information that is not currently readily available to the Acquired Companies or is not prepared in the ordinary course of business of the Acquired Companies at the time requested by Parent or (B) obtain review of any financial or other information by their accountants after using commercially reasonable efforts to obtain the same. None of the representations, warranties or covenants of the Company set forth in this Agreement shall be deemed to apply to, or deemed breached or violated by, any of the Purchased actions taken by the Company, any of its Subsidiaries or any of their respective Representatives at the request of Parent pursuant to this Section 6.17. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.17(a)(i) represent the sole obligation of the Acquired Companies and their respective Affiliates with respect to the cooperation in connection with Debt Financing.
(ii) The Company shall not be required to agree to any contractual obligation relating to the Debt Financing that is not conditioned upon the Closing and that does not terminate without liability to the Company and its Affiliates upon the termination of this Agreement that is not reimbursed or indemnified by Parent. The Company shall not be required to deliver or cause the delivery of any legal opinions, 10b-5 letters, authorization and representation letters or solvency certificates in connection with the Debt Financing. In addition, the parties hereto agree that any information with respect to the prospects and plans for the Acquired Companies in connection with the cooperation contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 Debt Financing will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion sole responsibility of Parent, violate or breach any Law, Organizational Documents or and neither the provisions of any Contract to which Parent or Acquired Companies nor any of its Affiliates is bound their Affiliates, directors, managers, officers, general or jeopardize limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives, shall have any attorney-client liability or other legal privilege, and (e) Parent will not be required to approach incur any landlord, consignee, customs broker, damages with respect thereto or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the Closing.be
Appears in 1 contract
Debt Financing. Parent (i) Prior to Closing, the Company shall, and shall cause its Subsidiaries to, use its commercially reasonable efforts to promptly provide (or cause its Subsidiaries to provide), in each case at Parent’s sole cost and shall cause expense, such customary cooperation in connection with the Purchased offering, arrangement, syndication, consummation or issuance of any debt, equity or equity-linked financing deemed necessary or appropriate by Parent, including, among other things, any debt or equity financing to be incurred or contemplated to be incurred in connection with the Transactions, the Acquired Companies and the Real Properties effective as of or after the Closing, as reasonably requested in writing (email being sufficient) by Parent (collectively, the “Debt Financing”); provided that the Company shall in no event be required to provide (or cause its and their respective Representatives Subsidiaries to use their respectively provide) such assistance that shall unreasonably interfere with its or its Subsidiaries’ business operations. Such assistance shall include using commercially reasonable efforts to do the following as promptly provideas reasonably practicable after ▇▇▇▇▇▇’s written request (email being sufficient), each of which with reasonable prior notice and at Parent’s sole cost and expense:
(1) make employees of the Company with appropriate seniority and expertise available to participate in a reasonable number of roadshows, due diligence sessions, drafting sessions, meetings (including one-on-one meetings or conference calls with providers of Debt Financing), rating agency presentations and other syndication activities and presentations with prospective lenders at reasonable times and locations mutually agreed; provided that any such meeting or communication may be conducted virtually by videoconference or other media;
(2) provide reasonable and customary assistance to Parent with Purchaser’s the preparation of customary offering documents, offering memoranda, syndication materials, information memoranda, lender presentations, materials for ratings agency presentations, private placement memoranda, bank information memoranda and similar documents reasonably necessary in connection with the Debt Financing and provide reasonable cooperation with the due diligence efforts of any source of any Debt Financing to the extent reasonable and customary; in each case in this clause: (or its Affiliates’A) obtaining debt financing subject to customary confidentiality provisions and disclaimers, (B) as is reasonably requested by Purchaser▇▇▇▇▇▇ and (C) limited to information to be contained therein with respect to the Acquired Companies or the Owned Real Property and Leased Real Property;
(3) furnish Parent, reasonably promptly upon written request, with such historical and projected financial, statistical and other pertinent information relating to the Acquired Companies as may be reasonably requested by Parent, as is usual and customary for Debt Financings and reasonably available and prepared by or for the Acquired Companies in the ordinary course of business;
(4) assist with the preparation of customary definitive loan documentation contemplated by the Debt Financing (including schedules), including any customary guarantee, pledge and security documents (provided that any such documents or agreements and any obligations contained in such documents shall be effective no earlier than as of the Effective Time);
(5) provide to Parent upon written request all documentation and other information with respect to the Acquired Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act in connection with the Debt Financing, in each case as reasonably requested by Parent;
(6) cooperate in connection with the repayment or defeasance of any existing Indebtedness of the Acquired Companies as of, and subject to occurrence of, the Closing and the release of related Liens following the repayment in full of such Indebtedness, including using commercially reasonable efforts to deliver such customary payoff (including the Payoff Letter), defeasance or similar notices within the time periods contemplated under any existing loans of the Acquired Companies as are reasonably requested by Parent (provided that the Company shall not be required to deliver any notices that are not conditioned on, and subject to the occurrence of, the Closing);
(7) cooperate with obtaining customary title insurance with respect to each material Real Property as reasonably requested by ▇▇▇▇▇▇;
(8) provide reasonable and customary assistance with respect to attempting to obtain any third-party consents associated with the delivery of guarantees and granting of mortgages, pledges and security interests in collateral for the Debt Financing;
(9) cause the Company’s independent auditors to deliver customary “comfort letters” and customary consents to the use of accountants’ audit reports in connection with the Debt Financing, to the extent such “comfort letters” are required to be delivered to the applicable underwriters, initial purchasers or placement agents in connection with any issuance of securities in a capital markets transaction comprising part of such Debt Financing;
(10) provide customary authorization letters authorizing the distribution of Company information to prospective lenders in connection with a syndicated bank financing;
(11) consent to the use of the Acquired Company’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 the Acquired Company’s reputation or goodwill;
(12) reasonably cooperate with the marketing efforts of Parent and its Financing Sources for any Debt Financing to be raised by ▇▇▇▇▇▇ to complete the Transactions;
(13) as may be reasonably requested by ▇▇▇▇▇▇, following the obtainment of the Required Company Stockholder Approval, form new direct or indirect wholly owned Subsidiaries of the Company pursuant to documentation reasonably satisfactory to Parent and the Company;
(14) as may be reasonably requested by Parent, and no earlier than immediately prior to the Effective Time on the Closing Date, and provided such actions would not adversely affect the Tax status of the Company or any of its Subsidiaries or cause the Company or any of its Subsidiaries to be subject to additional Taxes or otherwise suffer or incur any amounts that are not indemnified by Parent under Section 6.17(a)(iii), transfer or otherwise restructure its ownership of existing Subsidiaries of the Company, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and the Company;
(15) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, attempt to obtain estoppels and certificates from non-residential tenants, lenders, managers, franchisors, ground lessors, ground lessees and counterparties to reciprocal easement agreements, declarations and similar agreements in form and substance reasonably satisfactory to any potential financing source;
(16) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, provide customary and reasonable assistance to allow Parent and its Representatives to conduct customary appraisal and non-invasive environmental and engineering inspections of each Owned Real Property and, subject to obtaining required third-party consents with respect thereto (which the Company shall use reasonable efforts to obtain to the extent reasonably requested by Parent and required in connection with such inspections), Leased Real Property (provided, however, that (A) neither Parent nor its Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such Owned Real Property or Leased Real Property, (B) Parent shall schedule and coordinate all inspections with the Company in accordance with Section 6.05, and (C) the Company shall be entitled to have representatives present at all times during any such inspection); and
(17) to the extent necessary or advisable, reasonably cooperate to facilitate, effective no earlier than the Closing, the execution and delivery of definitive financing, pledge, security and guarantee documents reasonably requested by Parent and required in connection with the Debt Financing, including customary indemnities and bring down certificates issued in connection with a securitization of the Debt Financing; provided that (av) neither Parent the Company nor any of its Affiliates will be required to pay make any fee or incur any Liability filings with the SEC in connection with any such financingDebt Financing (other than in any applicable proxy statement), (bw) Purchaser nothing in this Section 6.17 shall promptlyrequire any such action to the extent it would (1) unreasonably interfere with the business or operations of the Acquired Companies or require the Acquired Companies to agree to pay any fees, reimburse any expenses or give any indemnities or otherwise incur any liability, in any case prior to the Closing, or for which Parent does not promptly reimburse or indemnify it, as the case may be, under this Agreement, (2) require any Acquired Company or its Representatives to execute, deliver, enter into or perform any Financing Document (other than with respect to customary authorization letters with respect to bank information memoranda) that is effective prior to the Closing or that is not contingent on Closing or (3) require any officer, director or other Representative of the Company or any of its Subsidiaries to deliver any certificate that such officer, director or other Representative reasonably believes, in good faith, contains any untrue certifications, (x) none of the general partners or board of directors (or other similar governing body) or committee or subcommittee thereof of any Acquired Company shall be required to adopt resolutions approving any Financing Documents that is effective prior to the Closing unless contingent on Closing (and any such adoption or approval at Closing shall be performed by such general partner, board of directors (or other similar governing body) or committee or subcommittee thereof as constituted after the Effective Time and Closing), (y) the Company’s obligations under this Section 6.17 shall be subject to Persons being bound by confidentiality agreements in accordance with customary market practice, and (z) none of the Acquired Companies shall be required to provide any information or take any action to the extent it would (1) cause significant competitive harm to any Acquired Company if the Transactions are not consummated, (2) violate, conflict with, breach or result in a default under, or that is prohibited or restricted by, Applicable Law or its Organizational Documents, (3) jeopardize any attorney-client, attorney work product or other legal privilege or similar protection (provided that the Company shall use reasonable efforts to allow access to such information in a manner that does not result in the events set out in this clause (3)), (4) violate any applicable confidentiality obligation of any Acquired Company, (5) require any Acquired Company to waive or amend any terms of this Agreement, (6) require any Acquired Company or any of its Affiliates to incur any liability or make any payment that is not reimbursed or indemnified by Parent under Section 6.17(a)(iii) or enter into any Contract that is not contingent on Closing, (7) reasonably be expected to constitute a violation or breach of, or default under, or give rise to any right of termination, cancellation or acceleration of any right or obligation of such Person or to a loss of any benefit to which such Person is entitled under any provision of any Company Material Contract binding upon such Person, (8) result in the creation or imposition of any Lien on any asset of such Person (except any Lien on any of the Acquired Company’s respective assets that becomes effective only upon the Closing), (9) result in any significant or unreasonable interference with the prompt and timely discharge of the duties of any Acquired Company’s or any of its Affiliates’ directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives, (10) result in any Acquired Company’s or any of its Affiliates’ directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives incurring any personal liability with respect to any matters relating to the Debt Financing or (11) result in any condition to Closing set forth in Article VII to fail to be satisfied by the End Date or otherwise result in a breach of this Agreement by any Acquired Company. The Company shall have satisfied its obligations set forth in this Section 6.17(a)(i) if the Company shall have used its commercially reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. In no event shall the Company be in breach of this Agreement for the failure to (A) deliver any financial or other information that is not currently readily available to the Acquired Companies or is not prepared in the ordinary course of business of the Acquired Companies at the time requested by Parent or (B) obtain review of any financial or other information by their accountants after using commercially reasonable efforts to obtain the same. None of the representations, warranties or covenants of the Company set forth in this Agreement shall be deemed to apply to, or deemed breached or violated by, any of the actions taken by the Company, any of its Subsidiaries or any of their respective Representatives at the request of Parent pursuant to this Section 6.17. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.17(a)(i) represent the sole obligation of the Acquired Companies and their respective Affiliates with respect to the cooperation in connection with Debt Financing.
(ii) The Company shall not be required to agree to any contractual obligation relating to the Debt Financing that is not conditioned upon the Closing and that does not terminate without liability to the Company and its Affiliates upon the termination of this Agreement that is not reimbursed or indemnified by Parent. The Company shall not be required to deliver or cause the delivery of any legal opinions, reimburse 10b-5 letters, authorization and representation letters or solvency certificates in connection with the Debt Financing. In addition, the parties hereto agree that any information with respect to the prospects and plans for the Acquired Companies in connection with the Debt Financing will be the sole responsibility of Parent, and neither the Acquired Companies nor any of their Affiliates, directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives, shall have any liability or incur any damages with respect thereto or be required to provide any information or make any presentations with respect to capital structure, or the incurrence of the Debt Financing or other pro forma information relating thereto or the manner in which Parent for intends to operate, or cause to be operated, the Acquired Companies after the Closing.
(iii) Parent shall indemnify and hold harmless the Acquired Companies, and each of their Representatives, and each of the Acquired Companies’ and their Representatives’ respective present and former directors, officers, employees and agents (collectively, the “Financing Indemnified Parties”), from and against any and all reasonable and document out-of-pocket costs and or expenses (including reasonable attorneys’ fees) ), judgments, fines, losses, claims, damages, liabilities, penalties, interest, awards or amounts paid in settlement that are suffered or incurred by Parent or any of the Purchased Companies in connection with the cooperation contemplated Debt Financing or any information, assistance or activities provided in connection therewith (other than the information provided in writing by this Section 5.16, (c) any cooperation required the Company or the Acquired Companies to Parent specifically in connection with their obligations pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the Closing.6.17
Appears in 1 contract
Debt Financing. Parent (i) Prior to the Closing Date, the Company shall use its commercially reasonable efforts to promptly provide, and shall cause each Subsidiary of the Purchased Companies and its and their respective Representatives Company to use their respectively its commercially reasonable efforts to promptly provide, to the Parent Parties, in each case at Parent’s sole expense, all customary cooperation reasonably requested in writing by Parent (e-mail being sufficient) in connection with the offering, arrangement, syndication, consummation or issuance of any financing with respect to the Acquired Companies and the Company Properties effective as of or after the Partnership Merger Effective Time (the “Debt Financing”) (provided that such assistance requested cooperation does not unreasonably interfere with Purchaser’s (the ongoing operations of the Company or any of its Affiliates’), including using commercially reasonable efforts to:
(1) obtaining debt financing upon reasonable notice, direct employees of the Acquired Companies with appropriate seniority and expertise to participate in a reasonable number of meetings (including one-on-one meetings or conference calls with providers of the Debt Financing), drafting sessions, road shows, rating agency presentations and due diligence sessions and other syndication activities and presentations with prospective lenders at reasonable times and locations mutually agreed; provided, that any such meeting or communication may be conducted virtually by videoconference or other media;
(2) provide reasonable and customary assistance to Parent with the preparation of customary offering documents, offering memoranda, syndication materials, information memoranda, lender presentations, materials for rating agency presentations, private placement memoranda, bank information memoranda and similar documents reasonably necessary in connection with the Debt Financing and provide reasonable cooperation with the due diligence efforts of any source of any Debt Financing to the extent reasonable and customary; in each case in this clause: (A) subject to customary confidentiality provisions and disclaimers; (B) as is reasonably requested by PurchaserParent; and (C) limited to information to be contained therein with respect to the Acquired Companies;
(3) furnish Parent, reasonably promptly upon written request, with such historical and projected financial, statistical and other pertinent information relating to the Acquired Companies as may be reasonably requested by Parent, as is usual and customary for Debt Financings and reasonably available and prepared by or for the Acquired Companies in the ordinary course of business;
(4) assist with the preparation of customary definitive loan documentation contemplated by the Debt Financing (including schedules), including any customary guarantee, pledge and security documents (provided that any such documents or agreements and any obligations contained in such documents shall be effective no earlier than as of the Partnership Merger Effective Time);
(5) provide to Parent upon written request all documentation and other information with respect to the Acquired Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act in connection with the Debt Financing, in each case as reasonably requested by Parent;
(6) cooperate in connection with the repayment or defeasance of any existing Indebtedness of the Acquired Companies as of, and subject to occurrence of, the Closing and the release of related Liens following the repayment in full of such Indebtedness, including using commercially reasonable efforts to deliver such customary payoff, defeasance or similar notices within the time periods contemplated under any existing loans of the Acquired Companies as are reasonably requested by Parent (provided, that the Company shall not be required to deliver any notices that are not conditioned on, and subject to the occurrence of, the Closing);
(7) cooperate with obtaining customary title insurance with respect to each material Company Property as reasonably requested by Parent;
(8) provide reasonable and customary assistance with respect to attempting to obtain any third-party consents associated with the delivery of guarantees and granting of mortgages, pledges and security interests in collateral for the Debt Financing;
(9) cause the Company’s independent auditors to deliver customary “comfort letters” and customary consents to the use of accountants’ audit reports in connection with the Debt Financing;
(10) provide customary authorization letters authorizing the distribution of Company information to prospective lenders in connection with a syndicated bank financing;
(11) consent to the use of the Acquired Company’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 the Acquired Company’s reputation or goodwill;
(a12) reasonably cooperate with the marketing efforts of Parent and its financing sources for any Debt Financing to be raised by Parent to complete the Mergers and the other transactions contemplated by this Agreement;
(13) as may be reasonably requested by Parent, following the obtainment of the Stockholder Approval, form new direct or indirect Wholly Owned Company Subsidiary pursuant to documentation reasonably satisfactory to Parent and the Company;
(14) as may be reasonably requested by Parent, and no earlier than immediately prior to the Partnership Merger Effective Time on the Closing Date, and provided such actions would not adversely affect the Tax status of the Company or any of its Subsidiaries or cause the Company or any of its Subsidiaries to be subject to additional Taxes or otherwise suffer or incur any amounts that are not indemnified by Parent under Section 7.12(a)(iii), transfer or otherwise restructure its ownership of existing Subsidiaries of the Company, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and the Company;
(15) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, attempt to obtain estoppels and certificates from non-residential tenants, lenders, managers, franchisors, ground lessors, ground lessees and counterparties to reciprocal easement agreements, declarations and similar agreements in form and substance reasonably satisfactory to any potential financing source;
(16) to the extent reasonably requested by Parent and necessary in connection with the Debt Financing, provide customary and reasonable assistance to allow Parent and its Representatives to conduct customary appraisal and non-invasive environmental and engineering inspections of each Owned Company Property and, subject to obtaining required third-party consents with respect thereto (which the Company shall use reasonable efforts to obtain to the extent reasonably requested by Parent and required in connection with such inspections), Leased Company Property (provided, however, that (A) neither Parent nor its Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such property, (B) Parent shall schedule and coordinate all inspections with the Company in accordance with Section 7.2, and (C) the Company shall be entitled to have representatives present at all times during any such inspection); and
(17) to the extent necessary or advisable, reasonably cooperate to facilitate, effective no earlier than the Closing, the execution and delivery of definitive financing, pledge, security and guarantee documents reasonably requested by Parent and required in connection with the Debt Financing, including customary indemnities and bring down certificates issued in connection with a securitization of the Debt Financing.
(ii) The Company shall have satisfied its obligations set forth in Section 7.12(a)(i) if the Company shall have used its commercially reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. Notwithstanding the foregoing, the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under Section 7.12(a)(i) to the extent that it: (i) unreasonably interferes with the ongoing business of the Acquired Companies; (ii) requires the Acquired Companies to incur any liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the Debt Financing prior to the Closing (except those fees, expenses and liabilities for which the Company is reimbursed by Parent); (iii) requires the Acquired Companies or their respective directors, trustees, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing (other than with respect to customary authorization letters with respect to bank information memoranda) or adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, in each case which is not contingent upon the Closing or would be effective at or prior to the Partnership Merger Effective Time; (iv) requires the Acquired Companies or their counsel to give any legal opinion; (v) requires the Acquired Companies to provide any information that is prohibited or restricted by applicable Law; (vi) requires the Acquired Companies to provide access to or disclose information that the Company or any of its Affiliates will Subsidiaries determines would result in a loss or waiver of or jeopardize any attorney-client privilege, attorney work product or other legal privilege (provided, that the Company Parties shall use reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in this clause (vi)); (vii) requires the Acquired Companies to take any action that is prohibited or restricted by, or would conflict with or violate, its organizational documents, or would result in a violation or breach of, or default under, any Material Contract to which any of the Acquired Companies is a party or any applicable Laws; (viii) would result in any officer or director of the Acquired Companies incurring personal liability with respect to any matter relating to the Debt Financing or requires any officer, director or other Representative of the Company or any of its Subsidiaries to deliver any certificate that such officer, director or other Representative reasonably believes, in good faith, contains any untrue certifications or (ix) requires the Acquired Companies or their Representatives, as applicable, to waive or amend any terms of this Agreement. In no event shall the Company Parties be in breach of this Agreement because of the failure to deliver any financial or other information that (A) is not currently readily available to the Acquired Companies on the date hereof and is not otherwise prepared in the ordinary course of business of Acquired Companies at the time requested by Parent or (B) for the failure to obtain review of any financial or other information by its accountants after using commercially reasonable efforts to obtain the same. In no event shall the Acquired Companies be required to pay any commitment or other fee or give an indemnity or incur any Liability liability (including due to any act or omission by the Company, its Subsidiaries or any of their respective Affiliates or Representatives) or expense (including legal and accounting expenses) in connection with assisting the Parent Parties in arranging the Debt Financing or as a result of any such financinginformation provided by the Company, its Subsidiaries or any of their respective Affiliates or Representatives in connection with the Debt Financing prior to the Partnership Merger Effective Time (b) Purchaser shall promptlyexcept those fees, upon request expenses, financial commitments or other financial obligations for which the Company is reimbursed by Parent). None of the representations, warranties or covenants of the Company Parties set forth in this Agreement shall be deemed to apply to, or deemed breached or violated by, any of the actions taken by the Company, any of the Company Subsidiaries, or any of their respective Representatives at the request of Parent pursuant to Section 7.12. For the avoidance of doubt, the Parties hereto acknowledge and agree that the provisions contained in this Section 7.12(a)(ii) represent the sole obligation of the Acquired Companies and their respective Affiliates with respect to cooperation in connection with the Debt Financing.
(iii) Parent shall reimburse Parent the Acquired Companies promptly upon demand for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ and accountants’ fees) (other than in respect of the preparation of customary historical financials) incurred by Parent or any of the Purchased Acquired Companies and its Representatives in connection with the cooperation under Section 7.12, any action taken by them at the request of Parent pursuant to Section 7.12 (including the dissolution and termination of any subsidiaries formed and documentation entered into pursuant to Section 7.12), and shall indemnify and hold harmless the Acquired Companies and their Representatives and each of the Acquired Companies’ and their Representatives’ respective present and former directors, officers, employees and agents (collectively, the “Financing Indemnified Parties”) from and against any and all out-of-pocket costs, expenses, losses, damages, claims, judgments, fines, penalties, interest, settlements, awards and liabilities suffered or incurred by any of them in connection with the arrangement and consummation of the Debt Financing and any information used in connection therewith (other than the information provided in writing by the Company or the other Acquired Companies to Parent specifically in connection with their obligations pursuant to Section 7.12(a)). The provisions of this Section 7.12(a)(iii) are intended to be for the benefit of, and shall be enforceable by, each of the foregoing Financing Indemnified Parties. This Section 7.12(a)(iii) shall survive the termination of this Agreement (and in the event the Mergers and the other transactions contemplated hereby are not consummated, Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs incurred by the Company and its Subsidiaries in connection with the cooperation under Section 7.12, and not previously reimbursed).
(iv) All confidential information regarding the Acquired Companies obtained by the Parent Parties and their respective Affiliates and Representatives pursuant to Section 7.12 shall be kept confidential in accordance with the Confidentiality Agreement. For the avoidance of doubt, without the prior written consent of the Company, in no event will the Parent Parties or any of their respective Affiliates (which for this purpose will be deemed to include each direct investor in the Parent Parties) enter into any agreement, arrangement or any other understanding, whether written or oral, with any potential source of Debt Financing that would reasonably be expected to limit, restrict, restrain, otherwise impair in any manner, directly or indirectly, the ability of such source of Debt Financing to provide Debt Financing or other assistance to any other party in any other transaction involving the Acquired Company (provided that the foregoing shall not prohibit the establishment of customary “tree” arrangements).
(v) Prior to the Closing Date, upon the request of the Company, Parent shall keep the Company reasonably informed in reasonable detail of the status of its efforts to arrange the Debt Financing. The Parent Parties acknowledge and agree that the obtaining of the Debt Financing is not a condition to Closing and that the consummation of the transactions contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will Agreement shall not be required to disclose or permit to disclose any information if such disclosure wouldconditioned on, or take any action if such action would, in delayed or postponed as a result of the reasonable discretion of Parent, violate or breach any Law, Organizational Documents obtaining (or the provisions of any Contract failure to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (eobtain) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the ClosingDebt Financing.
Appears in 1 contract
Sources: Merger Agreement (Preferred Apartment Communities Inc)
Debt Financing. Parent shall use its commercially reasonable efforts to promptly provide(a) (i) Seller shall, and shall cause the Purchased Companies its Subsidiaries to, and shall request that its and its Subsidiaries’ independent auditors, legal counsel and their respective Representatives other advisors, provide reasonable cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by Purchaser or its Affiliates, including:
(A) participating in a reasonable number of management presentations and due diligence sessions for the benefit of Purchaser’s Debt Financing sources; provided that the persons participating in such management presentations shall be limited to use their respectively commercially Covered Employees;
(B) providing Purchaser and its financing sources with all financial and other pertinent information regarding the Business as may be reasonably requested by the lenders of Purchaser that is of the type and form customarily included in private placement memoranda relating to private placements under Rule 144A of the Securities Act of 1933, as amended; provided that Seller shall have no obligation to provide audited financial information other than the Audited Financial Statements that have been provided as of the date of this Agreement;
(C) using reasonable efforts to promptly provideobtain accountants’ comfort letters, such assistance accountants’ reports and accountants’ consents reasonably necessary in connection with the Debt Financing;
(D) reasonably cooperating with Purchaser’s facilitation of the delivery in connection with the Debt Financing of collateral security, surveys and title insurance with respect to the Business; and
(or its Affiliates’E) obtaining debt financing as is reasonably requested by Purchasercooperating with surety bond and letter of credit providers with respect to the Debt Financing; provided that (ax) such requested cooperation does not unreasonably interfere with the ongoing operations of Seller and its Subsidiaries, (y) neither Parent Seller nor any of its Affiliates will Subsidiaries shall be required to pay any commitment or other similar fee or incur any Liability other liability (for which it is not indemnified by Purchaser) in connection with the Debt Financing and (z) Seller and its representatives shall not be required to deliver any such financing, (b) certificates or legal opinions in connection with the Debt Financing. Purchaser shall promptly, upon request by Parent, reimburse Parent Seller for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent or any of the Purchased Companies in connection with the cooperation contemplated by this Section 5.16, (c) any cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not unreasonably interfere with the Business or operations of Parent or any of its Affiliates (including the Purchased Companies), (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the ClosingDebt Financing.
Appears in 1 contract
Sources: Acquisition Agreement (Alcoa Inc)
Debt Financing. (a) Parent, Merger Sub and the Company will use commercially reasonable efforts to fully satisfy, on a timely basis, all terms, conditions, representations and warranties as may be required by a lender pursuant to any Debt Financing. Parent and Merger Sub will use commercially reasonable efforts to: (i) enter into definitive agreements with respect to the Debt Financing as soon as commercially reasonable but in any event prior to the Closing and (ii) satisfy on a timely basis all the terms, conditions, representations and warranties set forth in such definitive agreements. Parent and Merger Sub will furnish correct and complete copies of such definitive agreements to the Company promptly upon their execution.
(b) At the Company’s request, Parent and Merger Sub shall keep the Company informed in reasonable detail with respect to all material activity concerning the status of the Debt Financing. Without limiting the foregoing, Parent and Merger Sub agree to notify the Company as promptly as practicable, and in any event within 24 hours, and to use its commercially reasonable efforts to promptly provideobtain alternate financing for the transactions contemplated by this Agreement, provided that the terms and conditions of such alternate financing are not less favorable to Parent than those contemplated by the definitive agreements with respect to the Debt Financing, if at any time prior to the Closing Date any lender with respect to the Debt Financing notifies Parent or Merger Sub that such lender no longer intends to provide financing to Merger Sub on material terms set forth in such definitive agreements or the Debt Financing is canceled or terminated for any other reason.
(c) From the date hereof until the Effective Time, the Company and its Subsidiaries shall, and shall use their reasonable best efforts to cause the Purchased Companies and its and each of their respective Representatives to use their respectively commercially reasonable efforts to promptly provideofficers, such assistance with Purchaser’s (or its Affiliates’) obtaining debt financing as is directors, employees and representatives to, provide all cooperation reasonably requested by Purchaser; provided that (a) neither Parent nor any of its Affiliates will be required to pay any fee or incur any Liability in connection with any such financing, (b) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent or any of the Purchased Companies Merger Sub in connection with the cooperation contemplated by this Section 5.16arrangement of the Debt Financing; provided, however, (ca) any that nothing herein shall require cooperation required pursuant to this Section 5.16 will be conducted in a manner as to not the extent it would unreasonably interfere with with, or in any material manner impair, the Business business, operations or operations credit rating of Parent the Company or any its Subsidiaries (in the commercially reasonable judgment of the Company) and (b) the Company and its Affiliates (including the Purchased Companies), (d) Parent will Subsidiaries shall not be required to disclose or permit become subject to disclose any information if such disclosure would, or take obligations under any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party financing documents until immediately prior to the Closing to discuss landlord waivers, collateral access agreements or other similar agreements or to consent to the pre-filing of UCC-1s or the grant of Encumbrances on any of the Assets of the Business prior to the Closing. Notwithstanding the foregoing, except in the case of a willful breach by Parent, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms set forth in this Section 5.16 shall not constitute a basis for Purchaser to refuse to consummate the ClosingEffective Time so long as all conditions under Article 7 have been satisfied at such time.
Appears in 1 contract
Debt Financing. (a) Parent and Merger Sub shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to arrange, consummate and obtain the Debt Financing as promptly as practicable, but in any event on or prior to Closing. Parent shall use keep the Company informed on a reasonable basis and in reasonable detail of the status of its commercially reasonable efforts to promptly providearrange, consummate and obtain the Debt Financing.
(b) Prior to the Closing or the earlier expiration or termination of the Marketing Period, the Company Entities shall, and shall use reasonable best efforts to cause the Purchased Companies and its and their respective officers, directors, employees and Representatives to, at Parent’s sole cost and expense, provide customary cooperation to use their respectively commercially reasonable efforts to promptly provide, such assistance Parent in connection with Purchaser’s (or its Affiliates’) obtaining debt financing the Debt Financing as is may be reasonably requested by Purchaser; provided Parent, including by:
(i) furnishing Parent and the Debt Financing Sources with the Required Information, any updates to any Required Information as may be necessary for such Required Information to remain Compliant throughout the Marketing Period and such other historical financial information and other pertinent information regarding the Company Entities as may be reasonably requested by Parent and that is customarily needed for 144A-for-life debt offerings;
(aii) neither Parent nor any participating (and causing senior management and using reasonable best efforts to cause Representatives and advisors to participate) in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and investors with respect to, the Debt Financing), presentations, road shows, drafting sessions, due diligence sessions (including using reasonable best efforts to cause its Affiliates will be required independent auditors to pay any fee or incur any Liability participate therein) and sessions with ratings agencies, in each case in connection with any of such financingDebt Financing and with reasonable advance notice and at dates, times and locations as may be mutually agreed;
(iii) upon reasonable prior written notice, assisting Parent and the Debt Financing Sources in the preparation of (A) confidential information memoranda, lender presentations and similar marketing documents, (bB) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable and document out-of-pocket costs and expenses investor presentations (including reasonable attorneys’ fees“roadshow” or investor meeting slides), (C) incurred offering memoranda and private placement memoranda (including under Rule 144A) and (D) materials for rating agency presentations, in each case, solely to the extent involving information about the Company Entities;
(iv) executing and delivering (or assisting Parent in obtaining from legal counsel (including local counsel) to the Company and their advisors) any customary guarantee, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent or any of the Purchased Companies ▇▇▇▇▇▇ and as may be necessary and customary in connection with the cooperation Debt Financing (including a solvency certificate of the chief financial officer of the Company) and otherwise facilitating the obtaining of guarantees; provided, that all such guarantees and other documents with respect to the Company Entities and their respective assets shall be authorized and become effective subject to, and only at, or as of, the Closing; provided, further, that, for the avoidance of doubt, neither any Company Entity nor any counsel to any Company Entity shall be required to provide any legal opinion in connection with the Debt Financing;
(v) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent that are necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof, together with the cash at the Company Entities, if any (not needed for other purposes), to be made available on the Closing Date to consummate the Closing and the other transactions contemplated by this Section 5.16Agreement;
(vi) providing customary authorization and representation letters to the Debt Financing Sources, executed by or on behalf of the Company, authorizing the distribution of information to prospective lenders or investors and containing customary representations to the Debt Financing Sources regarding the accuracy and completeness of the information contained therein with respect to the Company and its Subsidiaries and, with respect to any “public version” of such materials, the absence of any material non-public information with respect to the Company and its Subsidiaries therein and that such written factual information (cother than customary exceptions), when taken as a whole, to the extent provided by the Company Entities does not contain a material misstatement or omission that would make the statements contained therein materially misleading in light of the circumstances under which they are made;
(vii) assisting with Parent’s preparation of pro forma financial statements for Parent in compliance with Article 11 of Regulation S-X under the Securities Act as reasonably required or customarily included in offering materials for transactions involving the private placement of non-convertible high-yield bonds in connection with the Debt Financing provided, that (A) Parent shall be responsible for the preparation of such pro forma financial statements and any pro forma adjustments giving effect to the transactions contemplated herein and (B) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records;
(viii) using reasonable best efforts to cause the independent auditors of the Company to provide reasonable and customary assistance and cooperation in connection with the Debt Financing, including using reasonable best efforts to cause such independent auditors to provide consents to the use of their audit reports and deliver customary “comfort letters” (which shall provide customary “negative assurance” and change period comfort) for a Rule 144A placement of securities (and to provide drafts of such comfort letters in advance of the commencement of the marketing of the Debt Financing) with respect to financial information contained in the offering materials relating to the Debt Financing (and using reasonable best efforts to provide customary representations to such independent auditors in connection with the foregoing);
(ix) cooperating with the Debt Financing Sources’ due diligence in connection with the Debt Financing, to the extent customary and reasonable; and
(x) providing, at least four (4) Business Days prior to the Closing Date, all documentation and other information as is required pursuant by applicable “know your customer”, beneficial ownership and anti-money laundering rules and regulations including the USA PATRIOT Act to this Section 5.16 will be conducted in a manner as the extent requested at least eight (8) Business Days prior to the Closing Date. provided, that such requested cooperation does not unreasonably interfere with the Business or ongoing operations of Parent the Company Entities and no such cooperation shall require (a) the Company Entities or any of its Affiliates their respective Subsidiaries to incur any liability or pay any fee or expense in connection with the Debt Financing prior to the Closing, (including b) the Purchased Companies)Company Entities or any of their respective Subsidiaries (i) in the case of individuals, to deliver, or be required to deliver, any certificate or instrument or take any action that would reasonably be expected to result in any personal liability or (ii) to make any representation, warranty or certification which the Company or such Subsidiary has determined in good faith is not true, (c) the pre-Closing board of directors or managers (or other managing person or group) of any Company Entity or any committee thereof to adopt a consent or resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or incur any personal liability, (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent Company Entities or any of its Affiliates is bound or jeopardize their respective Subsidiaries to execute prior to the Closing any attorney-client financing documents that will be effective prior to the Closing, including any credit or other agreements, pledge or security documents, or other certificates, legal privilegeopinions or documents in connection with the Debt Financing, and other than pursuant to clause (b)(vi), (b)(viii) or (b)(x) above, (e) Parent the Company Entities or any of their respective Subsidiaries to take any corporate or similar actions that will not be required to approach any landlord, consignee, customs broker, or other similar third party effective prior to the Closing to discuss landlord waiverspermit the consummation of the Debt Financing, collateral access agreements (f) the Company Entities or any of their respective Subsidiaries to provide cooperation that the Company or such Subsidiary reasonably believes would (i) conflict with or violate, result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any applicable Law or Material Contract (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such applicable Law or Material Contract), (ii) result in the loss of attorney-client privilege or other similar agreements legal privilege (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such privilege) or (iii) cause any of Company’s representations or warranties in this Agreement to be breached or any condition precedent set forth in this Agreement to fail to be satisfied, (g) the Company Entities or any of their respective Subsidiaries to consent to the pre-pre filing of UCC-1s or the grant of Encumbrances liens on any of the Assets of the Business Company Entities’ assets prior to the Closing, or (h) require any Company Entity or any of their respective Subsidiaries to prepare or deliver any financial statements or financial information in a form not customarily prepared by the Company or any financial information with respect to a fiscal period that has not yet ended, or for which the applicable quarterly or annual report has not been filed with the SEC or the delivery of projections, pro forma financial information or any other forward-looking information, in each case, other than the Required Information. Notwithstanding In addition, nothing herein shall require any director, manager, officer or employee of the foregoingCompany or any of its Subsidiaries who will not continue to hold such position following the Effective Time to execute any resolution(s) or written consent(s), or any certification, document, instrument or agreement, in connection with any financing contemplated by this Section 5.21, other than pursuant to clause (b)(vi), (b)(viii) or (b)(x) above. Parent covenants and agrees that any confidential information memoranda, lender presentations and similar marketing documents, material for investor presentations, offering memoranda and private placement memoranda (including under Rule 144A), materials for rating agency presentations and other offering documents or marketing materials contemplated hereby shall contain disclosures and disclaimers, to the extent applicable, reflecting the Company and/or its Subsidiaries as an obligor on the Debt Financing effective only at and after the Effective Time. The Company Entities hereby consent to the use of the Company Entities’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended to, or reasonably likely to, harm, disparage or otherwise adversely affect the Company Entities or the reputation or goodwill of the Company Entities, and solely in connection with a description of the Company and/or its Subsidiaries, including their businesses, or the Merger. Parent and ▇▇▇▇▇▇ Sub shall indemnify, defend and hold harmless the Company Entities and their respective shareholders, managers, members, officers, directors, employees, other Affiliates, agents and Representatives (the “Company Indemnitees”) from and against any and all losses, damages, claims, costs or expenses incurred by them in connection with the provision of assistance pursuant to Section 5.21(b) and any information used in connection therewith, except any such losses, damages, claims, costs or expenses determined by a court of competent jurisdiction in a final non-appealable judgment to have resulted from (a) any willful misconduct or bad faith by the case Company Indemnitees or (b) any material misstatement or omission in information relating to the Company Entities provided by the Company Indemnitees. Parent shall promptly upon the Company’s request reimburse the Company for all reasonable out-of-pocket and documented costs and expenses (including fees and disbursements of a willful breach single outside counsel and any additional outside counsel as reasonably consented to by Parent, ) incurred by the failure by Company Entities in connection with such cooperation pursuant to Section 5.21(b). The obligations of Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms and Merger Sub set forth in this paragraph (collectively, the “Parent Indemnity and Reimbursement Obligations”) shall survive the Closing or the termination of this Agreement, whether or not the Merger is consummated. All non-public or otherwise confidential information regarding the Company Entities obtained by Parent pursuant to Section 5.16 5.21(b) shall not constitute be kept confidential in accordance with the terms of the Confidentiality Agreement; provided that Parent shall be permitted to disclose such information (i) to the Debt Financing Sources, rating agencies and prospective lenders and investors of the Debt Financing or any permitted replacement, amendment, modification thereto, in each case, so long as such non-public or otherwise confidential information regarding the Company Entities is afforded substantially the same confidentiality protections as similar information of Parent that is distributed to such Persons and (ii) as, and in such case only to the extent, required by the Exchange Act, the rules and regulations of the SEC or any rule or regulation of any securities exchange upon which the securities of Parent are listed or traded.
(c) The Company hereby (i) consents to the inclusion of the financial statements referred to in Section 3.5(b) of this Agreement and the Required Information, as applicable, prior to the Closing in (A) to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent, any registration statement filed by Parent in connection with an offering or exchange of securities on Form S-1, Form S-3 or Form S-4 (or any successor forms) under the Securities Act in compliance with the requirements of Regulation S-X and Regulation S-K, as applicable, (B) to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent, the Proxy Statement, any Form 8-K or other Exchange Act filing and (C) subject to the provisions of Section 5.21(b), any prospectuses, private placement memoranda, lender and investor presentations, offering documents, bank information memoranda, rating agency presentations and similar documents customarily used in connection with the Debt Financing, including, any customary “offering memoranda” in connection with a basis for Purchaser debt securities offering, whether public or private and (ii) agrees to refuse use reasonable best efforts to cause its independent auditors to provide any consents to the use of their audit reports in any registration statement or Exchange Act filing by Parent to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent.
(d) Without limiting the effect of Section 8.10, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub agree and acknowledge that their obligations to consummate the Closingtransactions contemplated herein are not subject to or conditioned upon their obtaining financing.
Appears in 1 contract
Sources: Merger Agreement (Bluegreen Vacations Holding Corp)
Debt Financing. Parent (a) Buyer shall, and shall cause its Affiliates to, use its commercially reasonable efforts to promptly providetake, or cause to be taken, all actions, and shall to do, or cause to be done, all things necessary proper or advisable, to arrange, obtain and consummate the Purchased Companies UMB Financing on the terms and its and their respective Representatives conditions described in the Financing Letter as promptly as practicable after the date hereof, including using commercially reasonable efforts to: (i) enter into definitive agreements with respect to use their respectively the UMB Financing; (ii) satisfy (or obtain a waiver) on a timely basis of all conditions in such definitive agreements; (iii) consummate the UMB Financing contemplated by the Financing Letter at Closing or (B) obtain as promptly as possible alternative debt financing (the “Alternative Debt Financing”) in the amount necessary for Buyer to fund the Purchase Price, including using commercially reasonable efforts to promptly provide(1) enter into definitive agreements with respect to the Alternative Debt Financing, such assistance with Purchaser’s (2) satisfy (or its obtain a waiver) on a timely basis of all conditions in such definitive agreements and (3) consummate the Alternative Debt Financing at the Closing.
(b) Prior to the Closing, Sellers shall use their commercially reasonable efforts, and shall use their commercially reasonable efforts to cause their respective Affiliates’) obtaining debt financing , directors, officers, employees, representatives and advisors to, provide customary cooperation in connection with the arrangement of the Debt Financing as is may be reasonably requested by PurchaserBuyer, in each case, to the extent within their control and at the sole cost of the Buyer, including: (i) furnishing Buyer and its lenders (each a “Debt Financing Source”), such information reasonably requested, to which Sellers have access, by any Debt Financing Source that is reasonably necessary to prepare a customary information memorandum and other customary presentation materials for the syndication of the Debt Financing; provided (ii) cooperating with the Debt Financing Sources involved in the Debt Financing to provide access to the Sellers’ assets, cash management and accounting systems; (iii) taking corporate actions, which may be conditioned on the occurrence of the Closing, that are reasonably requested by Buyer in connection with the consummation of the Debt Financing; and (aiv) otherwise reasonably cooperating in Buyer’s efforts to obtain the Debt Financing.
(c) Notwithstanding anything in this Agreement to the contrary (including this Section 8.11(c)), neither Parent Sellers nor any of its their Affiliates will or representatives shall: (i) be required to pay any commitment or other fee or incur reimburse any Liability in connection with any such financing, (b) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable and document out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent or any of the Purchased Companies in connection with the cooperation contemplated by this Section 5.16Debt Financing; (ii) be required to incur any liability or give any indemnity in connection with the Debt Financing; (iii) be required to take any action that would require any director, officer or employee of Sellers or any of their Affiliates to execute, or be required to enter into, any document, agreement, certificate or instrument in connection with the Debt Financing except as may be effective at or after the Closing; (civ) be required to take any cooperation required pursuant to this Section 5.16 will be conducted action in a manner as to not connection with the Debt Financing that would unreasonably interfere with the Business ongoing business or operations operation of Parent Sellers or any of its their Affiliates or representatives; (including v) result in Sellers or any of their Affiliates incurring any liability with respect to the Purchased Companies)matters relating to the Debt Financing or cause any director, officer or employee of Sellers to incur any personal liability in connection with the Debt Financing; (dvi) Parent will not provide in connection with the Debt Financing any information the disclosure of which is prohibited or restricted under Law or is legally privileged; (vii) be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent or any of its Affiliates is bound or jeopardize any attorney-client or other legal privilege, and (e) Parent will not be required to approach any landlord, consignee, customs broker, or other similar third party organizational actions prior to the Closing to discuss landlord waiverspermit the consummation of the Debt Financing; and (viii) neither Seller shall be required to provide, collateral access agreements and Buyer shall be solely responsible for, (A) the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro form financial information, or (B) any solvency certificate or similar agreements certification or to consent to representation. Buyer shall (A) promptly upon request by Sellers reimburse Sellers for all documented costs or expenses incurred in good faith by Sellers in connection with such cooperation described in this Section 8.11 and (B) indemnify and hold harmless Sellers and their respective Affiliates and representatives from and against any and all liabilities, Losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the pre-filing arrangement of UCC-1s or the grant of Encumbrances on Debt Financing providing any of the Assets of the Business prior information utilized in connection therewith. Notwithstanding anything to the Closing. Notwithstanding the foregoing, except contrary in the case of a willful breach by Parentthis Agreement, the failure by Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms condition set forth in Section 8.10, as it applies to Sellers’ obligations under this Section 5.16 8.11, shall be deemed satisfied unless Sellers have breached in any material respect their respective obligations under this Section 8.11 and such breach has been the material cause of the Debt Financing not constitute a basis for Purchaser to refuse to consummate the Closingbeing obtained.
Appears in 1 contract
Sources: Asset Purchase Agreement (Scott's Liquid Gold - Inc.)
Debt Financing. (a) Parent and Merger Sub shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to arrange, consummate and obtain the Debt Financing as promptly as practicable, but in any event on or prior to Closing. Parent shall use keep the Company informed on a reasonable basis and in reasonable detail of the status of its commercially reasonable efforts to promptly providearrange, consummate and obtain the Debt Financing.
(b) Prior to the Closing or the earlier expiration or termination of the Marketing Period, the Company Entities shall, and shall use reasonable best efforts to cause the Purchased Companies and its and their respective officers, directors, employees and Representatives to, at Parent’s sole cost and expense, provide customary cooperation to use their respectively commercially reasonable efforts to promptly provide, such assistance Parent in connection with Purchaser’s (or its Affiliates’) obtaining debt financing the Debt Financing as is may be reasonably requested by Purchaser; provided Parent, including by:
(i) furnishing Parent and the Debt Financing Sources with the Required Information, any updates to any Required Information as may be necessary for such Required Information to remain Compliant throughout the Marketing Period and such other historical financial information and other pertinent information regarding the Company Entities as may be reasonably requested by Parent and that is customarily needed for 144A-for-life debt offerings;
(aii) neither Parent nor any participating (and causing senior management and using reasonable best efforts to cause Representatives and advisors to participate) in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and investors with respect to, the Debt Financing), presentations, road shows, drafting sessions, due diligence sessions (including using reasonable best efforts to cause its Affiliates will be required independent auditors to pay any fee or incur any Liability participate therein) and sessions with ratings agencies, in each case in connection with any of such financingDebt Financing and with reasonable advance notice and at dates, times and locations as may be mutually agreed;
(iii) upon reasonable prior written notice, assisting Parent and the Debt Financing Sources in the preparation of (A) confidential information memoranda, lender presentations and similar marketing documents, (bB) Purchaser shall promptly, upon request by Parent, reimburse Parent for all reasonable and document out-of-pocket costs and expenses investor presentations (including reasonable attorneys’ fees“roadshow” or investor meeting slides), (C) incurred offering memoranda and private placement memoranda (including under Rule 144A) and (D) materials for rating agency presentations, in each case, solely to the extent involving information about the Company Entities;
(iv) executing and delivering (or assisting Parent in obtaining from legal counsel (including local counsel) to the Company and their advisors) any customary guarantee, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent or any of the Purchased Companies ▇▇▇▇▇▇ and as may be necessary and customary in connection with the cooperation Debt Financing (including a solvency certificate of the chief financial officer of the Company) and otherwise facilitating the obtaining of guarantees; provided, that all such guarantees and other documents with respect to the Company Entities and their respective assets shall be authorized and become effective subject to, and only at, or as of, the Closing; provided, further, that, for the avoidance of doubt, neither any Company Entity nor any counsel to any Company Entity shall be required to provide any legal opinion in connection with the Debt Financing;
(v) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent that are necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof, together with the cash at the Company Entities, if any (not needed for other purposes), to be made available on the Closing Date to consummate the Closing and the other transactions contemplated by this Section 5.16Agreement;
(vi) providing customary authorization and representation letters to the Debt Financing Sources, executed by or on behalf of the Company, authorizing the distribution of information to prospective lenders or investors and containing customary representations to the Debt Financing Sources regarding the accuracy and completeness of the information contained therein with respect to the Company and its Subsidiaries and, with respect to any “public version” of such materials, the absence of any material non-public information with respect to the Company and its Subsidiaries therein and that such written factual information (cother than customary exceptions), when taken as a whole, to the extent provided by the Company Entities does not contain a material misstatement or omission that would make the statements contained therein materially misleading in light of the circumstances under which they are made;
(vii) assisting with Parent’s preparation of pro forma financial statements for Parent in compliance with Article 11 of Regulation S-X under the Securities Act as reasonably required or customarily included in offering materials for transactions involving the private placement of non-convertible high-yield bonds in connection with the Debt Financing provided, that (A) Parent shall be responsible for the preparation of such pro forma financial statements and any pro forma adjustments giving effect to the transactions contemplated herein and (B) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records;
(viii) using reasonable best efforts to cause the independent auditors of the Company to provide reasonable and customary assistance and cooperation in connection with the Debt Financing, including using reasonable best efforts to cause such independent auditors to provide consents to the use of their audit reports and deliver customary “comfort letters” (which shall provide customary “negative assurance” and change period comfort) for a Rule 144A placement of securities (and to provide drafts of such comfort letters in advance of the commencement of the marketing of the Debt Financing) with respect to financial information contained in the offering materials relating to the Debt Financing (and using reasonable best efforts to provide customary representations to such independent auditors in connection with the foregoing);
(ix) cooperating with the Debt Financing Sources’ due diligence in connection with the Debt Financing, to the extent customary and reasonable; and
(x) providing, at least four (4) Business Days prior to the Closing Date, all documentation and other information as is required pursuant by applicable “know your customer”, beneficial ownership and anti-money laundering rules and regulations including the USA PATRIOT Act to this Section 5.16 will be conducted in a manner as the extent requested at least eight (8) Business Days prior to the Closing Date. provided, that such requested cooperation does not unreasonably interfere with the Business or ongoing operations of Parent the Company Entities and no such cooperation shall require (a) the Company Entities or any of its Affiliates their respective Subsidiaries to incur any liability or pay any fee or expense in connection with the Debt Financing prior to the Closing, (including b) the Purchased Companies)Company Entities or any of their respective Subsidiaries (i) in the case of individuals, to deliver, or be required to deliver, any certificate or instrument or take any action that would reasonably be expected to result in any personal liability or (ii) to make any representation, warranty or certification which the Company or such Subsidiary has determined in good faith is not true, (c) the pre-Closing board of directors or managers (or other managing person or group) of any Company Entity or any committee thereof to adopt a consent or resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or incur any personal liability, (d) Parent will not be required to disclose or permit to disclose any information if such disclosure would, or take any action if such action would, in the reasonable discretion of Parent, violate or breach any Law, Organizational Documents or the provisions of any Contract to which Parent Company Entities or any of its Affiliates is bound or jeopardize their respective Subsidiaries to execute prior to the Closing any attorney-client financing documents that will be effective prior to the Closing, including any credit or other agreements, pledge or security documents, or other certificates, legal privilegeopinions or documents in connection with the Debt Financing, and other than pursuant to clause (b)(vi), (b)(viii) or (b)(x) above, (e) Parent the Company Entities or any of their respective Subsidiaries to take any corporate or similar actions that will not be required to approach any landlord, consignee, customs broker, or other similar third party effective prior to the Closing to discuss landlord waiverspermit the consummation of the Debt Financing, collateral access agreements (f) the Company Entities or any of their respective Subsidiaries to provide cooperation that the Company or such Subsidiary reasonably believes would (i) conflict with or violate, result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any applicable Law or Material Contract (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such applicable Law or Material Contract), (ii) result in the loss of attorney-client privilege or other similar agreements legal privilege (but the Company shall take reasonable steps to provide such information or cooperation in a manner that does not violate any such privilege) or (iii) cause any of Company’s representations or warranties in this Agreement to be breached or any condition precedent set forth in this Agreement to fail to be satisfied, (g) the Company Entities or any of their respective Subsidiaries to consent to the pre-pre filing of UCC-1s or the grant of Encumbrances liens on any of the Assets of the Business Company Entities’ assets prior to the Closing, or (h) require any Company Entity or any of their respective Subsidiaries to prepare or deliver any financial statements or financial information in a form not customarily prepared by the Company or any financial information with respect to a fiscal period that has not yet ended, or for which the applicable quarterly or annual report has not been filed with the SEC or the delivery of projections, pro forma financial information or any other forward-looking information, in each case, other than the Required Information. Notwithstanding In addition, nothing herein shall require any director, manager, officer or employee of the foregoingCompany or any of its Subsidiaries who will not continue to hold such position following the Effective Time to execute any resolution(s) or written consent(s), or any certification, document, instrument or agreement, in connection with any financing contemplated by this Section 5.21, other than pursuant to clause (b)(vi), (b)(viii) or (b)(x) above. Parent covenants and agrees that any confidential information memoranda, lender presentations and similar marketing documents, material for investor presentations, offering memoranda and private placement memoranda (including under Rule 144A), materials for rating agency presentations and other offering documents or marketing materials contemplated hereby shall contain disclosures and disclaimers, to the extent applicable, reflecting the Company and/or its Subsidiaries as an obligor on the Debt Financing effective only at and after the Effective Time. The Company Entities hereby consent to the use of the Company Entities’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended to, or reasonably likely to, harm, disparage or otherwise adversely affect the Company Entities or the reputation or goodwill of the Company Entities, and solely in connection with a description of the Company and/or its Subsidiaries, including their businesses, or the Merger. Parent and ▇▇▇▇▇▇ Sub shall indemnify, defend and hold harmless the Company Entities and their respective shareholders, managers, members, officers, directors, employees, other Affiliates, agents and Representatives (the “Company Indemnitees”) from and against any and all losses, damages, claims, costs or expenses incurred by them in connection with the provision of assistance pursuant to Section 5.21(b) and any information used in connection therewith, except any such losses, damages, claims, costs or expenses determined by a court of competent jurisdiction in a final non-appealable judgment to have resulted from (a) any willful misconduct or bad faith by the case Company Indemnitees or (b) any material misstatement or omission in information relating to the Company Entities provided by the Company Indemnitees. Parent shall promptly upon the Company’s request reimburse the Company for all reasonable out-of-pocket and documented costs and expenses (including fees and disbursements of a willful breach single outside counsel and any additional outside counsel as reasonably consented to by Parent, ) incurred by the failure by Company Entities in connection with such cooperation pursuant to Section 5.21(b). The obligations of Parent to comply, or cause the Purchased Companies or its or their respective representatives to comply, with the terms and Merger Sub set forth in this paragraph (collectively, the “Parent Indemnity and Reimbursement Obligations”) shall survive the Closing or the termination of this Agreement, whether or not the Merger is consummated. All non-public or otherwise confidential information regarding the Company Entities obtained by Parent pursuant to Section 5.16 5.21(b) shall not constitute be kept confidential in accordance with the terms of the Confidentiality Agreement; provided that Parent shall be permitted to disclose such information (i) to the Debt Financing Sources, rating agencies and prospective lenders and investors of the Debt Financing or any permitted replacement, amendment, modification thereto, in each case, so long as such non-public or otherwise confidential information regarding the Company Entities is afforded substantially the same confidentiality protections as similar information of Parent that is distributed to such Persons and (ii) as, and in such case only to the extent, required by the Exchange Act, the rules and regulations of the SEC or any rule or regulation of any securities exchange upon which the securities of Parent are listed or traded.
(c) The Company hereby (i) consents to the inclusion of the financial statements referred to in Section 3.5(b) of this Agreement and the Required Information, as applicable, prior to the Closing in (A) to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent, any registration statement filed by Parent in connection with an offering or exchange of securities on Form S-1, Form S-3 or Form S-4 (or any successor forms) under the Securities Act in compliance with the requirements of Regulation S-X and Regulation S-K, as applicable, (B) to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of Parent, the Proxy Statement, any Form 8-K or other Exchange Act filing and (C) subject to the provisions of Section 5.21(b), any prospectuses, private placement memoranda, lender and investor presentations, offering documents, bank information memoranda, rating agency presentations and similar documents customarily used in connection with the Debt Financing, including, any customary “offering memoranda” in connection with a basis for Purchaser debt securities offering, whether public or private and (ii) agrees to refuse use reasonable best efforts to cause its independent auditors to provide any consents to the use of their audit reports in any registration statement or Exchange Act filing by Parent to the extent required by applicable Law or otherwise reasonably necessary or advisable in the good faith opinion of ▇▇▇▇▇▇.
(d) Without limiting the effect of Section 8.10, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub agree and acknowledge that their obligations to consummate the Closingtransactions contemplated herein are not subject to or conditioned upon their obtaining financing.
Appears in 1 contract