Existing Indebtedness. If requested by Parent, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtained.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Aspen Insurance Holdings LTD), Agreement and Plan of Merger (Aspen Insurance Holdings LTD), Agreement and Plan of Merger (Aspen Insurance Holdings LTD)
Existing Indebtedness. If requested by Parent, the Company shall use provide commercially reasonable best efforts cooperation to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, documents or instruments necessary, proper, proper or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writingParent, the Company shall use provide commercially reasonable best efforts cooperation to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing closing (or such other date thereafter as agreed to selected by Parent and the Company), which redemption shall be the sole responsibility of Parent, ) and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under thereunder. In furtherance of the Existing Debt Documents as may be reasonably requested by Parent, and in each caseforegoing, if reasonably requested by Parent, the Company shall, shall and shall cause its Subsidiaries to, to execute and deliver such customary notices, agreements, documents, documents or instruments necessary to either terminate the Existing Debt Documents or redeem the relevant notes or debentures, in connection therewitheach case effective as of the Closing (or such other date thereafter selected by the Parent) or to obtain the consents required under the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter, as determined by Parent in its sole discretion. Notwithstanding anything in this Section 6.15 6.16 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 6.16 to (i) incur or agree to incur any out-of-pocket expenses, expenses unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment or similar fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, therefor (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, Date unless contingent upon the occurrence of the Closing, (viv) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (viv) take include any action actions that the Company reasonably believes could (Aw) violate its or its Subsidiaries’ certificate of incorporation or bye-laws bylaws (or comparable documents), (Bx) violate any applicable Lawlaw, (Cy) constitute a default or violation under, or give rise to any right of termination, cancellation, cancellation or acceleration of any right or obligation of the Company or its Subsidiaries such Person or to a loss of any benefit to which the Company or its Subsidiaries such Person is entitled under any provision of of, any Contractagreement or other instrument binding upon such Person or to which such Person is a party, or (Dz) result in the creation or imposition of any Lien lien on any asset of the Company or its Subsidiariessuch Person, (viivi) to waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xivii) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the this Section 6.156.16. Parent shall defend, indemnify, indemnify and hold harmless any the Company, any of its Subsidiaries, Subsidiaries and any of their respective Representatives from, against, against and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, costs and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewithhereunder. Notwithstanding this Section 6.15 6.16 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, amendments or other similar actions described in this Section 6.15 and Section 6.14 section be obtained.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Validus Holdings LTD), Agreement and Plan of Merger (American International Group Inc)
Existing Indebtedness. If requested by ParentPrior to or substantially contemporaneously with the initial funding of Loans on the Effective Date, (i) all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement shall have been or shall be paid in full, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 commitments of the Company Disclosure Letter lenders thereunder shall have been terminated, all letters of credit outstanding thereunder shall have been terminated or shall on the Effective Date become Existing Letters of Credit, all guarantees and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder Liens existing in connection with the Transactions. If Existing Credit Agreement and the “Loan Documents” referred to therein shall have been discharged and released and all related UCC and other filings shall have been terminated; (ii) all principal, premium, if any, interest, fees and other amounts due or outstanding under the extent reasonably requested by Parent Existing Acquired Company Credit Agreement shall have been or shall be paid in writingfull, the commitments of the lenders thereunder shall have been terminated, all letters of credit outstanding thereunder shall have been terminated or shall on the Effective Date become Existing Letters of Credit, all guarantees and Liens existing in connection with the Existing Acquired Company Credit Agreement shall have been discharged and released and all related UCC filings shall have been terminated; provided, that in lieu of causing any loans outstanding under the Existing Acquired Company Credit Agreement to be paid, the Company shall use reasonable best efforts to cooperate may (A) acquire such Loans, (B) pledge the same, together with Parent all related rights and Merger Sub in either interests (aincluding all rights under the Existing Acquired Company Credit Agreement and all related guarantees and security agreements) arranging as security for the termination of Existing Debt Documents Obligations under the Security Agreement (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters maintain in effect all UCC and other customary release documentation in connection therewith (including filings with respect to the Existing Revolving Credit FacilityLiens securing such loans) or and (bC) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under cause the Existing Debt Documents as may Acquired Company Credit Agreement and all related documentation to be reasonably requested by Parent, and amended in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 a manner satisfactory to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, Administrative Agent; and (iii) amend or agree the ISDA Master Agreement dated as of December 27, 2007, between the Acquired Company and JPMCB, and all swap transactions governed thereby, shall have been terminated and all obligations in respect thereof shall have been discharged. The Administrative Agent shall have received evidence reasonably satisfactory to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence it of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management satisfaction of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing conditions set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedparagraph.
Appears in 2 contracts
Samples: Credit Agreement (Dress Barn Inc), Credit Agreement (Dress Barn Inc)
Existing Indebtedness. If requested by Parent, the Company shall use reasonable best efforts to cooperate with Parent Developer and Merger Sub in taking such actions as are necessary under Agency acknowledge that: (xi) the indentures listed in item Agency has previously issued the Existing Indebtedness as part of the Agency’s customary tax allocation bond financing that is secured by its pledge of tax increment from the BVHP Redevelopment Plan Area; (ii) the Agency has previously incurred additional indebtedness relating to its obligation to replenish certain reserve funds associated with bonds issued by certain project areas (the “Agency-Wide Indebtedness”); (iii) of Section 4.16 the Agency’s repayment of the Company Disclosure Letter and (y) the credit agreements listed Agency-Wide Indebtedness is secured in Section 4.03(c) part by its pledge of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect tax increment from several of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereofits project areas, including the delivery BVHP Redevelopment Plan Area (the “Cross-Collateralization Pledge”); and (iv) it would be a violation of any officer certificates and opinions of counsel the Agency’s debt obligations for the Agency to refuse to use Net Available Increment not otherwise pledged to pay Tax Allocation Debt if required to be delivered thereunder in connection meet the Agency’s payment obligations for the Agency-Wide Indebtedness. In keeping with the Transactions. If and Funding Goals, however, the Agency agrees that, when it is required to make any payments on the Existing Indebtedness or on the Agency-Wide Indebtedness under the Cross-Collateralization Pledge, to the extent reasonably requested by Parent in writingthat doing so will not violate any Indenture or other instruments governing the Existing Indebtedness or the Agency-Wide Indebtedness, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for Agency will make such payments using sources of Agency funds other than the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent Candlestick Increment and the Company), which redemption shall be Shipyard Increment. Developer agrees that the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations Agency’s obligation under this Section 6.15 to (i3.5(c) incur or agree does not require the Agency to incur additional indebtedness to meet its Existing Indebtedness or Agency-Wide Indebtedness payment obligations. The Agency agrees that on and after the Reference Date, except for any out-of-pocket expensesPublic Financing contemplated by this Financing Plan, unless they are promptly reimbursed by Parent, (ii) incur or agree to the Agency will not incur any commitment, tender, consent, amendment fee new or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any additional “backstopindebtedness” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees any new or additional tax allocation bonds) under the CCRL the repayment of legal counsel) resulting from which is secured by a pledge of Candlestick Increment or incurred Shipyard Increment, without Developer’s Approval in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedits sole discretion.
Appears in 2 contracts
Existing Indebtedness. If requested by ParentThe Loan Documents described on Exhibit F hereto and made a part hereof (i.e., the Company shall use reasonable best efforts to cooperate with Parent “Loan Documents” and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writingfunds disbursed thereunder, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company“Loan”), which redemption shall be are the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect only documents or agreements relating to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit Indebtedness to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably Property shall be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to bound after the Closing set forth in Article VII (subject to fail to such modifications or amendments as may be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that required by the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit Lender prior to the Closingclosing). There are no amendments or modifications (written, oral, by course of conduct or (xiotherwise) result in any to the Loan Documents other than as described on Exhibit F. The Loan was originated by Lender. The original principal amount of the Company’s Loan to the Company under the Loan Documents was $ . The current amount of principal outstanding under the Loan Documents as of November 30, 2011 is $ . The annual rate of interest throughout the remaining term of the Loan is %. All payments required to be made under the Loan Documents to date have been made and will be made as of the Closing Date. There are no other fees, expenses or any other amounts due to the Lender as of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to the date hereof (other than fees which may be imposed after the date of execution of this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred Agreement in connection with the cooperation hereunder transfer of the Membership Interests to the Operating Partnership and which shall be payable by the Operating Partnership in accordance with Section 4.5(b) hereof). Neither the Company nor, to the best of the Company Manager’s knowledge, the Lender is in default under the Loan Documents. There are no other obligations of the Company to the Lender except as set forth in writing in the Loan Documents. No controversy, claim, dispute or disagreement exists between the parties to the Loan Documents. No event has occurred which, with the giving of notice or the passage of time, or both, would constitute a default under any information utilized of the Loan Documents which has not been cured. The Loan Documents are in full force and effect. There are no reserves held by the Lender, except as set forth on the Disclosure Schedule. The Loan Documents shall not be further extended, modified or amended prior to Closing (except as may be required by the Lender in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement with the transfer of the Membership Interests to the contraryOperating Partnership). There is no pending or, each of the parties hereto agrees that it is not a condition to the Closing that Company Manager’s knowledge, threatened, litigation, proceeding or investigation relating to the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedLoan Documents.
Appears in 2 contracts
Samples: Contribution Agreement (Wheeler Real Estate Investment Trust, Inc.), Contribution Agreement (Wheeler Real Estate Investment Trust, Inc.)
Existing Indebtedness. If requested by ParentExcept as described therein, the Company shall use reasonable best efforts to cooperate with Parent Schedule 4(m) hereto sets forth a complete and Merger Sub in taking such actions correct list of all outstanding Indebtedness (as are necessary under (xhereinafter defined) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its SubsidiariesSubsidiaries as of May 31, (vi) take any action that 2003, since which date there has been no material change in the Company reasonably believes could (A) violate its amounts, interest rates, sinking funds, installment payments or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation maturities of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset Indebtedness of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that . Neither the Company determines would jeopardize nor any attorney-client privilege Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness of the Company or such Subsidiary and no event or condition exists with respect to any Indebtedness of the Company or any Subsidiary that would permit (or that with notice or the lapse of time, or both, would permit) one or more persons to cause such Indebtedness to become due and payable before its Subsidiariesstated maturity or before its regularly scheduled dates of payment. For purposes of this Agreement, “Indebtedness” with respect to the Company means, at any time, without duplication, (xi) fund its liabilities for borrowed money and its redemption obligations in respect of mandatorily redeemable preferred stock; (ii) its liabilities for the deferred purchase price of property acquired by the Company (excluding accounts payable arising in the ordinary course of business but including all liabilities created or arising under any repayment, redemption, cash collateralization, conditional sale or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability other title retention agreement with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of such property); (iii) all liabilities appearing on its Subsidiaries, and any of their respective Representatives from, against, and balance sheet in accordance with GAAP in respect of capital leases; (iv) all liabilities for borrowed money secured by any Lien with respect to any property owned by the Company (whether or not it has assumed or otherwise become liable for such liabilities); (v) all its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and all claimsother financial institutions (whether or not representing obligations for borrowed money); and (vi) any guaranty of the Company with respect to liabilities of a type described in any of subclauses (i) through (v) hereof. Except as set forth on Schedule 4(m), liabilitiessince the date of the 2003 Financial Statements (as defined in Section 4(q)), lossesneither the Company nor any Subsidiary has incurred any liabilities of any kind, damagescharacter and description, judgmentswhether accrued, finesabsolute, penaltiessecured or unsecured, costs, and expenses contingent or otherwise of a kind that would have been required to be disclosed on such 2003 Financial Statements if they were dated as of the date hereof other than (including fees of legal counseli) resulting from or liabilities incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement ordinary course of business subsequent to the contrary, each date of the parties hereto agrees that it is 2003 Financial Statements and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not a condition required under generally accepted accounting principles to be reflected in the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtained2003 Financial Statements.
Appears in 2 contracts
Samples: Secured Note Purchase Agreement (Euniverse Inc), Secured Note Purchase Agreement (Marver James D)
Existing Indebtedness. If requested by Parent, On the Company shall use reasonable best efforts to cooperate with Parent Initial Borrowing Date and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and after giving effect to the extent reasonably requested by Parent in writingTransaction, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination neither Holdings nor any of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, shall have any Preferred Stock or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to Indebtedness outstanding except for (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parentthe Loans and Letters of Credit, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company thereforAttributed Receivables Facility Indebtedness, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on Indebtedness of Holdings represented by the ClosingConvertible Subordinated Debentures, (iv) incur any liability the Senior Subordinated Bridge Loans in connection therewith prior an aggregate principal amount not to the Closing Date, unless contingent upon the occurrence of the Closingexceed $450,000,000, (v) take any action that would unreasonably interfere with or unreasonably disrupt Indebtedness of Holdings in an aggregate principal amount of $100,000,000 represented by the normal operations Mezzanine Subordinated Debt, and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could certain intercompany indebtedness and other indebtedness as is listed on Schedule VI in an aggregate outstanding principal amount not to exceed $4,500,000 (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions Indebtedness described in this Section 6.15 clause (vi) being herein called "Scheduled Existing Indebtedness" and, together with the Indebtedness described in clauses (ii) and Section 6.14 (iii) above being herein called the "Existing Indebtedness"). On and as of the Initial Borrowing Date, all of the Existing Indebtedness and the Convertible QUIPS (to the extent not converted into the right to receive Initial Convertible QUIPS Conversion Payments) shall be obtainedoutstanding after giving effect to the Transaction and the other transactions contemplated hereby without any default or event of default existing thereunder or arising as a result of the Transaction and the other transactions contemplated hereby (except to the extent amended or waived by the parties thereto on terms and conditions reasonably satisfactory to the Agents and the Required Lenders), and there shall not be any amendments or modifications to the Existing Indebtedness Agreements or the Convertible QUIPS Documents other than as requested or approved by the Agents or the Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Vertis Inc)
Existing Indebtedness. If requested by ParentAs more fully set forth on Schedule 5.2.8, the Company Property is subject to certain existing indebtedness, which is secured by, inter alia, a first mortgage or deed of trust on the Property (the “Existing Indebtedness”). Purchaser, at its election, such election to be delivered in writing to Seller no later than that date which is five (5) Business Days after the Effective Date, shall have the right to seek the consent of the holder of the Existing Indebtedness to the transaction contemplated by this Agreement without causing an acceleration of the Existing Indebtedness (the “Consent”). Seller and Purchaser shall cooperate in good faith and shall use reasonable best efforts to cooperate with Parent and Merger Sub assist in taking such actions as are necessary under (x) obtaining the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectivelyConsent; provided, “Existing Debt Documents”) in respect of the Transactionshowever, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company that Seller shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company not be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur costs or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability expenses in connection therewith prior therewith. If Purchaser elects not to obtain or is unable to obtain the Consent on or before April 21, 2006, pursuant to documentation reasonably acceptable to Purchaser and Seller, including, without limitation, estoppel provisions reasonably acceptable to Purchaser and releases of existing guaranties and indemnities from Seller and its affiliates in form reasonably acceptable to Seller (the “Loan Documents”), then, if the Closing Dateoccurs, unless contingent upon Seller shall cause the occurrence of Trust to pay at Closing the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any then outstanding principal balance and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, other sums due and expenses (including fees of legal counsel) resulting from or incurred payable in connection with the cooperation hereunder or Existing Indebtedness, including, without limitation, any information utilized prepayment penalty that may be due thereunder. If Purchaser elects to obtain and does obtain the Consent, at Closing, Purchaser shall be entitled to deduct from the Purchase Price otherwise payable hereunder, the then-outstanding principal balance and other sums due and payable in connection therewith. Notwithstanding this Section 6.15 with the Existing Indebtedness, including any transfer fees, assumption fees, and points on additional loan proceeds, not to exceed the amount Seller would otherwise be obligated to pay as a prepayment premium were Purchaser to elect to not seek the Consent, but excluding any other costs, fees or anything in this Agreement to the contrary, each expenses of the parties hereto agrees that it is not a condition holders of the Existing Indebtedness, their counsel or third party consultants incurred or payable in connection with Purchaser’s attempt to obtain the Closing that Consent the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedExisting Indebtedness.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Existing Indebtedness. If requested by ParentThe Administrative Agent shall have received evidence satisfactory to the Administrative Agent and the Lenders that, after giving effect to the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents, liability on (or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT money and Capitalized Lease Obligations, other than (A) the Loans outstanding hereunder as contemplated by Section 4.1(n) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in Section 7.2(a)) (collectively, the "SURVIVING DEBT"), and (ii) the Borrower and each of its Subsidiaries shall have paid in full all other Indebtedness of the Borrower and each of its Subsidiaries existing prior to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption making of the relevant notes or debenturesinitial Loans hereunder (all of the foregoing Indebtedness described in the foregoing clause (i) at the Closing and (or such other date thereafter ii) referred to collectively as agreed to by Parent and the Company"EXISTING DEBT"), which redemption . The Administrative Agent shall be satisfied that the sole responsibility of Parentexecution and delivery of, and the procurement performance by each of customary payoff letters the Borrower and other customary release documentation in connection therewith (including with respect its Subsidiaries of its respective obligations under, each Transaction Document to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the which it is a party and consummation of the Transactions thereunder and obtaining does not violate, conflict with or cause a default under any amendments to document or other consents under the instrument evidencing Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and Debt. The Administrative Agent shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to have received (i) incur or agree payoff and lien termination and release agreements, in form and substance satisfactory to incur any out-of-pocket expensesthe Administrative Agent, unless they are promptly reimbursed by Parentfrom each creditor of the Borrower and its Subsidiaries with respect to Existing Debt other than Surviving Debt, and (ii) incur such UCC Amendments (or agree to incur any commitmentits equivalent), tenderintellectual property lien releases in recordable form in all applicable jurisdictions, consentand other lien and mortgage release and termination agreements, amendment fee or any fee similar to any evidence of the foregoingrelease of federal and state tax liens, unless Parent provides the funding all in form and substance satisfactory to the Company thereforAdministrative Agent, (iii) amend or agree to amend any Existing Debt Documentas the Administrative Agent shall request, duly executed by the appropriate Person in favor of which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedsuch Liens were granted.
Appears in 1 contract
Existing Indebtedness. If requested by (i) the Parent, the Company Borrower and its Restricted Subsidiaries shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking such actions have no Indebtedness for borrowed money outstanding as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter Closing Date other than under the Term Facilities, the Senior Notes, the Senior Subordinated Notes, the ABL Facility and the other Indebtedness permitted by Section 7.2 and (yii) Parent, Borrower and its Subsidiaries shall have repaid in full all Indebtedness outstanding under the Existing Credit Facility, together with all accrued but unpaid interest, fees and other amounts owing thereunder (other than (A) contingent indemnification obligations not yet due and payable and (B) obligations with respect to existing letters of credit agreements listed in Section 4.03(c(so long as such existing letters of credit are deemed letters of credit under the ABL Facility) (such letters of the Company Disclosure Letter (collectivelycredit, “Existing Debt DocumentsLetters of Credit”)) and (i) all commitments to lend or make other extensions of credit thereunder shall have been terminated, (ii) all security interests in respect of, and Liens securing, the Indebtedness and other obligations thereunder created pursuant to the security documentation relating thereto shall have been terminated and released, and the Administrative Agent shall have received all such releases as may have been reasonably requested by the Administrative Agent, which releases shall be in form and substance reasonably satisfactory to Administrative Agent, including, without limiting the foregoing, (a) proper termination statements (Form UCC-3 or the appropriate equivalent) for filing under the Uniform Commercial Code or equivalent statute or regulation of each jurisdiction where a financing statement or application for registration (Form UCC-1 or the Transactionsappropriate equivalent) was filed with respect to Parent, including delivering Borrower or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder its Subsidiaries in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including security interests created with respect to the Existing Revolving Credit Facility) or Facility and (b) obtaining terminations or reassignments of any consents required under security interest in, or Lien on, any Existing Debt Documents to permit the consummation patents, trademarks, copyrights, or similar interests of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company Borrower or any of its SubsidiariesSubsidiaries and (iii) other than with respect to Existing Letters of Credit, (x) fund the Parent and its Subsidiaries shall have made arrangements reasonably satisfactory to the Administrative Agent and the Joint Lead Arrangers for the cancellation of any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedoutstanding thereunder.
Appears in 1 contract
Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents, liability on (or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If footnotes thereto) and to which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capitalized Lease Obligations, other than (A) the extent reasonably requested Loans outstanding hereunder as contemplated by Parent in writingSection 4.1(q) and (B) Indebtedness set forth on Schedule 7.2 (collectively, the "Surviving Debt"), the aggregate outstanding principal amount of which shall not exceed $100,000,000 as of the Closing Date, and (ii) the Borrower, the Company and each of their respective Subsidiaries shall use reasonable best efforts to cooperate with Parent and Merger Sub have paid in either (a) arranging for the termination of Existing Debt Documents (or redemption full all other Indebtedness of the relevant notes or debenturesBorrower, the Company and their respective Subsidiaries existing prior to the making of the initial Loans hereunder (all of the foregoing Indebtedness described in the foregoing clause (i) at the Closing and (or such other date thereafter ii) referred to collectively as agreed to by Parent and the Company"Existing Debt"), which redemption . The Agent shall be satisfied that the sole responsibility of Parentexecution and delivery of, and the procurement performance by each of customary payoff letters the Borrower, the Company and other customary release documentation in connection therewith (including with respect their respective Subsidiaries of its respective obligations under, each Transaction Document to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the which it is a party and consummation of the Transactions thereunder and obtaining does not violate, conflict with or cause a default under any amendments to document or instrument evidencing Existing Debt, other consents under the than Existing Debt Documents as may be reasonably requested by Parentbeing repaid on the Closing Date. The Agent shall have received (i) payoff and lien termination and release agreements, in form and in substance satisfactory to the Agent, from each case, if reasonably requested by Parentcreditor of the Borrower, the Company shalland their respective Subsidiaries with respect to Existing Debt other than Surviving Debt, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur such Form UCC-3 (or agree to incur any commitmentits equivalent), tenderintellectual property lien releases in recordable form in all applicable jurisdictions, consentand other lien and mortgage release and termination agreements, amendment fee or any fee similar to any evidence of the foregoingrelease of federal and state tax liens, unless Parent provides the funding all in form and substance satisfactory to the Company thereforAgent, (iii) amend or agree to amend any Existing Debt Documentas the Agent shall request, duly executed by the appropriate Person in favor of which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedsuch Liens were granted.
Appears in 1 contract
Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents, liability on (or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection the footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capitalized Lease Obligations, other than (A) the Loans outstanding hereunder as contemplated by Section 4.1(n) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in Section 7.2(a)) (collectively, the "SURVIVING DEBT"), and (ii) the Borrower and each of its Subsidiaries shall have paid in full all other Indebtedness of the Borrower and each of its Subsidiaries existing prior to the making of the initial Loans hereunder (all of the foregoing Indebtedness described in the foregoing clause (i) and (ii) referred to collectively as "EXISTING DEBT"). The Agent shall be satisfied that the execution and delivery of, and the performance by each of the Borrower and its Subsidiaries of its respective obligations under, each Transaction Document to which it is a party and consummation of the Transactions does not violate, conflict with the Transactions. If and or cause a default under any document or instrument evidencing Existing Debt, except to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit that the consummation of the Transactions thereunder and obtaining any amendments to or other consents under may constitute a breach of Section 4.7 of the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, Senior Subordinated Note Indenture for 30 days after the Company shall, and Closing Date. The Agent shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to have received (i) incur or agree payoff and lien termination and release agreements, in form and substance satisfactory to incur any out-of-pocket expensesthe Agent, unless they are promptly reimbursed by Parentfrom each creditor of the Borrower and its Subsidiaries with respect to Existing Debt other than Surviving Debt, and (ii) incur such UCC Amendments (or agree to incur any commitmentits equivalent), tenderintellectual property lien releases in recordable form in all applicable jurisdictions, consentand other lien and mortgage release and termination agreements, amendment fee or any fee similar to any evidence of the foregoingrelease of federal and state tax liens, unless Parent provides the funding all in form and substance satisfactory to the Company thereforAgent, (iii) amend or agree to amend any Existing Debt Documentas the Agent shall request, duly executed by the appropriate Person in favor of which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedsuch Liens were granted.
Appears in 1 contract
Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents, liability on (or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If footnotes thereto) and to which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capital ized Lease Obligations, other than (A) the extent reasonably requested Loans outstanding hereunder as contemplated by Parent Section 4.1(q) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in writingSection 7.2(a)) (collectively, the "Surviving Debt"), the aggregate outstanding principal amount of which shall not exceed $350,000,000 as of the Closing Date, and (ii) the Borrower, the Company and each of their respective Subsidiaries shall use reasonable best efforts to cooperate with Parent and Merger Sub have paid in either (a) arranging for the termination of Existing Debt Documents (or redemption full all other Indebtedness of the relevant notes or debenturesBorrower, the Company and their respective Subsidiaries existing prior to the making of the initial Loans hereunder (all of the foregoing Indebtedness described in the foregoing clause (i) at the Closing and (or such other date thereafter ii) referred to collectively as agreed to by Parent and the Company"Existing Debt"), which redemption . The Agent shall be satisfied that the sole responsibility of Parentexecution and delivery of, and the procurement performance by each of customary payoff letters the Borrower, the Company and other customary release documentation in connection therewith (including with respect their respective Subsidiaries of its respective obligations under, each Transaction Document to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the which it is a party and consummation of the Transactions thereunder and obtaining does not violate, conflict with or cause a default under any amendments to document or instrument evidencing Existing Debt, other consents under the than Existing Debt Documents as may be reasonably requested by Parentbeing repaid on the Closing Date. The Agent shall have received (i) payoff and lien termination and release agreements, in form and in substance satisfactory to the Agent, from each case, if reasonably requested by Parentcreditor of the Borrower, the Company shalland their respective Subsidiaries with respect to Existing Debt other than Surviving Debt, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, such Form UCC-3 (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documentsequivalent), (B) violate any intellectual property lien releases in recordable form in all applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnifyjurisdictions, and hold harmless the Company, any of its Subsidiaries, other lien and any of their respective Representatives from, against, mortgage release and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtained.termination agreements,
Appears in 1 contract
Existing Indebtedness. If requested by Parent(a) On or prior to the Closing Date, the Company Seller shall deliver to Buyer executed payoff letters (and shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking deliver to Buyer drafts of such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith on or before the third (including with respect to the Existing Revolving Credit Facility3rd) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith Business Day prior to the Closing Date), unless contingent upon the occurrence in customary form, from any of the Closingholders (or the agent or trustee on behalf thereof) of Indebtedness under the agreements set forth in clause (a) of the definition of Existing Credit Facilities (such letters, the “Payoff Letters”), each of which shall (i) include the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or similar obligations (other than indemnity and contingent liabilities) and all fees, costs and expenses under the applicable agreements evidencing such Indebtedness as of the anticipated Closing Date (and the daily accrual thereafter), together with appropriate wire instructions, (vii) take any action provide that would unreasonably interfere with or unreasonably disrupt the normal operations and management upon receipt of the Company and its Subsidiariesapplicable payoff amounts, the applicable agreements evidencing such Indebtedness shall be terminated (vi) take other than any action provisions that by their terms survive the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documentstermination thereof), (Biii) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation provide that all Liens on the assets and properties of the Company or its Subsidiaries or to a loss Transferred Entities (including the equity interests thereof) securing any such Indebtedness and all guarantees of any benefit to which such Indebtedness by the Company or its Subsidiaries is entitled under any provision of any ContractTransferred Entities shall be, or (D) result in upon the creation or imposition of any Lien on any asset payment of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to applicable payoff amounts on the Closing set forth in Article VII Date, released and terminated and (iv) include a customary commitment by such holders (or such agent or trustee on behalf thereof) to fail execute and provide documentation and filings reasonably necessary to evidence the release or termination of such Liens (which release and termination shall be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Companyat Seller’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedexpense).
Appears in 1 contract
Existing Indebtedness. If requested by (i) The Parent, the Company Borrowers and their respective Restricted Subsidiaries shall use reasonable best efforts to cooperate with Parent have no Indebtedness for borrowed money outstanding as of the Closing Date other than under the Term Loan Facility, the Senior Notes, the Senior Subordinated Notes, the ABL Facility and Merger Sub in taking such actions as are necessary under the other Indebtedness permitted by Section 7.03 and (xii) the indentures listed Parent, the Borrowers and their respective Subsidiaries shall have repaid in item full all Indebtedness outstanding under the Existing Credit Facility, together with all accrued but unpaid interest, fees and other amounts owing thereunder (iiiother than (A) of Section 4.16 of the Company Disclosure Letter contingent indemnification obligations not yet due and payable and (yB) the obligations with respect to Existing Letters of Credit and (i) all commitments to lend or make other extensions of credit agreements listed in Section 4.03(cthereunder shall have been terminated, (ii) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) all security interests in respect of, and Liens securing, the Indebtedness and other obligations thereunder created pursuant to the security documentation relating thereto shall have been terminated and released, and the Agent shall have received all such releases as may have been reasonably requested by the Agent, which releases shall be in form and substance reasonably satisfactory to Agent, including, without limiting the foregoing, if applicable, (a) proper termination statements (Form XXX-0, XXXX 0X or the appropriate equivalent) for filing under the Uniform Commercial Code or equivalent statute or regulation of each jurisdiction where a financing statement or application for registration (Form XXX-0, XXXX 0X or the Transactionsappropriate equivalent) was filed with respect to the Parent, including delivering the Borrowers or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder their respective Subsidiaries in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including security interests created with respect to the Existing Revolving Credit Facility) or 119 Facility and (b) obtaining terminations or reassignments of any consents required under security interest in, or Lien on, any Existing Debt Documents to permit the consummation patents, trademarks, copyrights, or similar interests of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, Borrowers or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives fromSubsidiaries and (iii) other than with respect to Existing Letters of Credit, against, Holdings and in respect its Subsidiaries shall have made arrangements reasonably satisfactory to the Agent and the Joint Lead Arrangers for the cancellation of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees letters of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedcredit outstanding thereunder.
Appears in 1 contract
Samples: Credit Agreement (YCC Holdings LLC)
Existing Indebtedness. If requested Simultaneously with the Closing, Parent shall, if the consent of the Company’s lenders is obtained by Parent, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking extend or refinance, or, if such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documentsconsent is not obtained, or instruments necessaryif such consent is obtained but Parent shall nevertheless elect, properParent shall repay, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required cause to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writingrepaid, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management behalf of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation outstanding Indebtedness of the Company or and its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result listed in the creation or imposition of any Lien on any asset Section 6.14 of the Company Disclosure Schedule. Repayment, if required or elected, shall be made by wire transfer of immediately available funds pursuant to payoff letters provided to Parent by the Company at least two (2) Business Days prior to the Closing Date, which further provide for the release of all liens on the assets of the Company held by the applicable lenders. As of the Closing, if the existing Indebtedness is not refinanced, with respect to each of the letters of credit of the Company and its Subsidiaries issued pursuant to agreements governing Indebtedness of the Company and its Subsidiaries, Parent shall (viii) waive cause such letter of credit to be returned to the issuers thereof and provide to the beneficiary of such letter of credit a letter of credit on terms satisfactory to the beneficiary of such letters of credit or amend any terms (ii) otherwise satisfy the issuers and beneficiaries of this such letters of credit as to the disposition or retention of such letters of credit under the applicable credit facilities (e.g., cash collateralizing such obligations). After the date hereof, at the request of Parent, and subject to Parent’s obligations under the Confidentiality Agreement, (viii) take any action that could the Company shall use reasonable efforts to provide information and documents as Parent’s proposed lenders may reasonably be expected require. The Company shall in furtherance thereof use reasonable efforts to cause any representation or warranty or covenant contained make its personnel available at reasonable times and following reasonable advance notice, for management presentations, and allow customary background checks, if requested by Parent. Nothing in this Agreement Section 6.14 is intended to be breached or modify the conditions to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, Sections 7.1 and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtained7.2.
Appears in 1 contract
Existing Indebtedness. If requested by ParentOn the Closing Date (substantially concurrently with the initial funding of the Loans hereunder), the Company (A) Borrower and its Subsidiaries shall use reasonable best efforts to cooperate with Parent and Merger Sub have (i) repaid in taking such actions as are necessary under full (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter Existing Valeant Facility and (y) all other Indebtedness of Borrower, other than (1) Indebtedness with an aggregate principal amount not in excess of $5,000,000, (2) Indebtedness set forth on Schedule 6.1 hereto and (3) Indebtedness among the Credit Parties and their Subsidiaries permitted by Section 6.1 hereto and except for the Existing Notes (as to which clause (B) below shall apply), (ii) terminated any commitments to lend or make other extensions of credit agreements listed in Section 4.03(cthereunder, (iii) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary delivered to deliver any such notices, agreements, documents, Administrative Agent all documents or instruments necessary, proper, necessary to release all Liens securing such Indebtedness or advisable to comply with the terms thereof, including the delivery other obligations of any officer certificates Borrower and opinions of counsel required to be delivered its Subsidiaries thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at being repaid on the Closing Date and (or such other date thereafter as agreed iv) made arrangements reasonably satisfactory to by Parent Administrative Agent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including Arrangers with respect to the Existing Revolving cancellation of any letters of credit outstanding thereunder or the issuance of Letters of Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit support the consummation obligations of the Transactions thereunder Borrower and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents)respect thereto, (B) violate Borrower shall have repaid or issued an irrevocable call notice with respect to all of the Existing Notes in accordance with the terms of the indentures governing such Existing Notes and shall have deposited amounts necessary to redeem the outstanding amount of such Existing Notes, together with any applicable Lawaccrued interest, premium or other amounts owed, with the trustees under the indentures governing the Existing Notes and (C) constitute a there will not exist (pro forma for the Transactions) any default or violation under, or give rise to any right event of termination, cancellation, or acceleration of any right or obligation of default under the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedValeant Convertible Notes.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International)
Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents, liability on (or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capitalized Lease Obligations, other than (A) the Revolving Loans outstanding hereunder as contemplated by Section 4.1(q) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in Section 7.2(a)) (collectively, the "Surviving Debt"), the aggregate outstanding principal amount of which shall not exceed $490,000,000 as of the Closing Date, and (ii) the Borrower and each of its Subsidiaries shall have paid in full all other Indebtedness of the Borrower and each of its Subsidiaries existing prior to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption making of the relevant notes or debenturesinitial Revolving Loans hereunder (all of the foregoing Indebtedness described in the foregoing clause (i) at the Closing and (or such other date thereafter ii) referred to collectively as agreed to by Parent and the Company"Existing Debt"), which redemption . The Agent shall be satisfied that the sole responsibility of Parentexecution and delivery of, and the procurement performance by each of customary payoff letters the Borrower and other customary release documentation in connection therewith (including with respect its Subsidiaries of its respective obligations under, each Transaction Document to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the which it is a party and consummation of the Transactions thereunder and obtaining does not violate, conflict with or cause a default under any amendments to document or instrument evidencing Existing Debt, other consents under the than Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, being repaid on the Company shall, and Closing Date. The Agent shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to have received (i) incur or agree payoff and lien termination and release agreements, in form and substance satisfactory to incur any out-of-pocket expensesthe Agent, unless they are promptly reimbursed by Parentfrom each creditor of the Borrower and its Subsidiaries with respect to Existing Debt other than Surviving Debt, and (ii) incur such Form UCC-3 (or agree to incur any commitmentits equivalent), tenderintellectual property lien releases in recordable form in all applicable jurisdictions, consentand other lien and mortgage release and termination agreements, amendment fee or any fee similar to any evidence of the foregoingrelease of federal and state tax liens, unless Parent provides the funding all in form and substance satisfactory to the Company thereforAgent, (iii) amend or agree to amend any Existing Debt Documentas the Agent shall request, duly executed by the appropriate Person in favor of which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedsuch Liens were granted.
Appears in 1 contract
Existing Indebtedness. If requested by ParentOn the Closing Date, the Company Administrative Agent shall use reasonable best efforts have received evidence reasonably satisfactory to cooperate with Parent and Merger Sub in taking such actions as are necessary under it that (xi) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, that any of the Company shall use reasonable best efforts Senior Notes are not purchased and retired on or before the Closing Date pursuant to cooperate with Parent and Merger Sub in either (a) arranging a tender offers for the termination Senior Notes, (A) irrevocable notices of Existing Debt Documents (redemption for such Senior Notes not tendered shall have been, or redemption substantially simultaneously with the initial funding the of the relevant notes Term Loans will be, given to the holders of such Senior Notes to redeem such Senior Notes on or debentures) at about 30 days following the Closing Date (the “Senior Notes Redemption Date”) and (B) the conditions to achieve a Covenant Defeasance of the Senior Notes pursuant to the Senior Notes Indentures have been, or such other date thereafter as agreed to by Parent and substantially simultaneously with the Company)initial funding of the Term Loans will be, which redemption shall be the sole responsibility of Parentsatisfied; provided that, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) Floating Rate Notes, a Covenant Defeasance shall not be required if, prior to or (b) obtaining any consents required under any Existing Debt Documents to permit substantially simultaneously with the consummation initial funding of the Transactions thereunder Term Loans, (1) the Floating Rate Supplemental Indenture shall have become effective and obtaining any amendments (2) cash in Dollars shall have been deposited with the trustee under the Floating Rate Notes Indenture in an amount, reasonably estimated by the Borrower (and reasonably approved by Administrative Agent), sufficient to satisfy the requirements of Section 8.04(a)(i) of the Floating Rate Notes Indenture; (ii) all principal, premium, if any, interest, fees and other amounts due or other consents outstanding under the Existing Debt Documents as may be reasonably requested by Parent, Agreements (other than under the Senior Notes Indentures and other than with respect to any outstanding letters of credit collateralized in each case, if reasonably requested by Parenta manner satisfactory to the Administrative Agent) shall have been paid in full, the Company shall, commitments to lend or make other extensions of credit thereunder terminated and all guarantees and security in support thereof discharged and released. Administrative Agent shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 have received evidence reasonably satisfactory to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to it (i) incur or agree to incur any out-of-pocket expensesthat, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding immediately after giving effect to the Company thereforTransactions, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence none of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company Holdings or any of its SubsidiariesSubsidiaries shall have any Indebtedness other than the Indebtedness created under this Agreement, the Indebtedness created under the Revolving Credit Agreement and the Indebtedness set forth on Schedule 6.1 and (xii) fund any repaymentthat, redemption, cash collateralization, or provide any “backstop” letters of credit prior immediately after giving effect to the ClosingTransactions, there will not exist any default or (xi) result in any event of default under any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless documents governing the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtained.Indebtedness set forth on Schedule 6.1
Appears in 1 contract
Existing Indebtedness. If requested by ParentOn the Effective Date, the Company Administrative Agent shall use reasonable best efforts have received evidence reasonably satisfactory to cooperate with Parent and Merger Sub in taking such actions as are necessary under it that (xi) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts Senior Notes are not purchased and retired on or before the Effective Date pursuant to cooperate with Parent and Merger Sub in either (a) arranging tender offers for the termination Senior Notes, (A) irrevocable notices of Existing Debt Documents redemption for the Senior Notes not tendered shall have been, or substantially simultaneously with the effectiveness of this Agreement will be, given to the holders of such Senior Notes to redeem the Senior Notes on or about 30 days following the Effective Date (or redemption the “Senior Notes Redemption Date”) and (B) the conditions to achieve a Covenant Defeasance of the relevant notes Senior Notes pursuant to the Senior Notes Indentures have been, or debentures) at substantially simultaneously with the Closing (or such other date thereafter as agreed to by Parent and the Company)effectiveness of this Agreement will be, which redemption shall be the sole responsibility of Parentsatisfied; provided that, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents Floating Rate Notes, a Covenant Defeasance shall not be required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments if, prior to or other consents under substantially simultaneously with the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any of the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms effectiveness of this Agreement, (viii1) take the Floating Rate Supplemental Indenture shall have become effective and (2) cash in dollars shall have been deposited with the trustee under the Floating Rate Indenture in an amount, reasonably estimated by the Borrower (and reasonably approved by the Administrative Agent), sufficient to satisfy the requirements of Section 8.04(a)(i) of the Floating Rate Indenture; and (ii) all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Debt Agreements (other than under the Senior Notes Indentures and other than with respect to any action that could reasonably be expected to cause any representation or warranty or covenant contained outstanding letters of credit collateralized in this Agreement to be breached or to cause any condition a manner satisfactory to the Closing set forth Administrative Agent) shall have been paid in Article VII full, the commitments to fail lend or make other extensions of credit thereunder terminated and all guarantees and security in support thereof discharged and released. The Administrative Agent shall have received evidence reasonably satisfactory to be satisfied or otherwise cause any breach it (i) that, immediately after giving effect to the Transactions, none of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company Holdings or any of its SubsidiariesSubsidiaries shall have any Indebtedness other than the Indebtedness created under this Agreement, the Indebtedness created under the Term Loan Credit Agreement and the Indebtedness set forth on Schedule 6.01(a) and (xii) fund any repaymentthat, redemption, cash collateralization, or provide any “backstop” letters of credit prior immediately after giving effect to the ClosingTransactions, there will not be exist any default or (xi) result in any event of default under any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless documents governing the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedIndebtedness set forth on Schedule 6.01(a).
Appears in 1 contract
Samples: Credit Agreement (Griffon Corp)
Existing Indebtedness. If requested by Parent(a) Prior to the Closing, at its option, before the commencement of the Marketing Period, Parent may direct the Company to, in accordance with the indenture (as supplemented from time to time, the Company shall use reasonable best efforts to cooperate with "Indenture") governing the Company's 71/8% Senior Subordinated Notes due 2015 (the "2015 Notes"), commence a tender offer and consent solicitation (the "Tender Offer") for all of the outstanding 2015 Notes on the terms and conditions determined by Parent in its sole discretion, and Parent and Merger Sub in taking shall provide such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents assistance as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 In the event Parent elects before the commencement of the Marketing Period to the contrary, in no event shall direct the Company be required to conduct the Tender Offer, (i) Parent shall promptly prepare all necessary and appropriate documentation in connection with its obligations under this Section 6.15 the Tender Offer, including the offer to purchase, related letters of transmittal and other related documents (i) incur or agree collectively, the "Offer Documents"), shall provide the Company an opportunity to incur review and comment on the Offer Documents and shall include any out-of-pocket expenses, unless they are promptly reimbursed proposed changes reasonably requested by Parent, the Company thereon; (ii) incur Parent and the Company shall cooperate, and shall use their reasonable best efforts to cause their respective advisors and representatives to cooperate, with each other in the preparation of the Offer Documents; (iii) the Company, Parent and Merger Sub shall cooperate in connection with the Tender Offer in order to cause the initial settlement of the Tender Offer to occur simultaneously with the Closing; (iv) upon the receipt of the necessary consents required to amend the Indenture, the Company shall enter into a supplemental indenture reflecting the amendments to such indenture approved by the holders of the 2015 Notes and will use its reasonable best efforts to cause the Indenture trustee to promptly enter into such supplemental indenture; provided that the amendments contained in such supplemental indenture shall not become operative until the acceptance of and payment for the 2015 Notes tendered representing a majority in principal amount of the 2015 Notes and the closing of the Tender Offer shall be conditioned on, and shall not occur prior to, the Effective Time and shall otherwise be completed in compliance with applicable Laws and SEC rules and regulations; and (v) simultaneously with and conditioned upon the Closing and in accordance with the terms of the Tender Offer (but prior to the time the Company is required to pay for any 2015 Notes accepted in the Tender Offer), Parent shall provide to the Surviving Corporation the funds necessary to consummate the Tender Offer and consent solicitation (including the payment of all applicable premiums, consent fees and all related fees and expenses) and shall pay all fees and expenses related thereto, including those of any dealer managers. Nothing herein shall prevent the Company from preparing or agree filing any report required to incur any commitment, tender, consent, amendment fee or any fee similar be filed pursuant to any of the Exchange Act and incorporated by reference into the Offer Documents. Notwithstanding the foregoing, unless Parent provides the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege none of the Company or any of its Subsidiaries, Subsidiaries shall be required to pay any commitment or other similar fee or to make any other payment (xother than reasonable out-of-pocket costs) fund or incur any repayment, redemption, cash collateralization, other liability or provide or agree to provide any “backstop” letters indemnity in connection with the Tender Offer, compliance with this Section 6.19 or any of credit the foregoing that is effective prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15Effective Time. Parent shall defend, indemnify, indemnify and hold harmless the Company, any its Subsidiaries and the Representatives of its Subsidiaries, the Company from and any of their respective Representatives from, against, and in respect of against any and all claims, liabilities, losses, damages, judgments, fines, penaltiesclaims, costs, expenses, interest, awards, judgments and expenses (including fees of legal counsel) resulting from penalties suffered or incurred by them in connection with the cooperation hereunder or Tender Offer and in compliance with this Section 6.19 (including any action taken in accordance with this Section 6.19(a)) and any information utilized in connection therewiththerewith (other than historical information relating to the Company or its Subsidiaries). Notwithstanding Parent shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with this Section 6.15 6.19(a), including in connection with the review of the Offer Documents. At the request of Parent, in connection with the Tender Offer and the related consent solicitation, the Company shall enter into one or anything more dealer manager agreements on customary terms with such Persons as shall be determined by Parent (which agreements shall be assumed by Parent in the event this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedterminated).
Appears in 1 contract
Existing Indebtedness. If requested For so long as the Additional Credit Facility is outstanding, in the event Borrower fails to perform or comply with any of the provisions of Sections 5.10 (to the extent pertaining to Material Contracts and Proprietary Rights not related to ownership and operation of the Mortgaged Property), 7.1 (except with respect to Indebtedness secured by ParentLiens on the Mortgaged Property), 7.3 (to the extent pertaining to Material Contracts and Proprietary Rights not related to ownership and operation of the Mortgaged Property), 7.4 (other than Section 7.4(A)(2)), 7.6 or 7.12 of this Agreement (such sections, the Company “Override Sections”), Lender shall use reasonable best efforts be deemed to cooperate with Parent have consented to such failure and Merger Sub such failure shall not be deemed a Default or an Event of Default under this Agreement, if (i) such action is not prohibited under the terms of the Additional Credit Facility or (ii) if prohibited under the Additional Credit Agreement, the Additional Credit Lender consents in taking writing to such actions failure (or takes such other action so that such failure does not continue as are necessary a default or event of default under such Additional Credit Agreement (xwhether by temporary or permanent waiver or forbearance, amendment or otherwise)) within 180 days of becoming aware thereof. In the event (A) the indentures listed Additional Credit Lender takes actions in item accordance with clause (iiiii) of Section 4.16 of the Company Disclosure Letter above and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable Borrower’s failure to comply with the terms thereof, including specific Override Sections could reasonably be determined to have materially impaired the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption interests of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent and the Company), which redemption shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including Lender with respect to the Existing Revolving full repayment of the Obligations as and when due and payable and (B) the Additional Credit FacilityLender received as a condition to taking such actions any financial incentives, paydowns, additional credit support or, except (x) as provided below in this Section 5.13 with respect to pledges of stock in Subsidiaries from the Borrower or any of its Subsidiaries or (y) with respect to assets that are either or both (I) then encompassed within security interests existing in collateral granted by Borrower in favor of the Additional Credit Lender under the Additional Credit Facility (whether pursuant to after-acquired property clauses or, unless resulting from actions taken in accordance with clause (ii) above, otherwise) or (bII) obtaining any consents required the product of, proceeds of or derived from existing collateral pledged by Borrower to the Additional Credit Lender under any Existing Debt Documents to permit the consummation Additional Credit Facility, collateral (such as a fee, increase in return on credit extensions or loan repayment, warrant or other financial interest in Borrower or its Subsidiaries or additional Subsidiary guaranties of the Transactions thereunder and obtaining any amendments to or other consents obligations under the Existing Debt Documents as may Additional Credit Facility), Lender shall also be reasonably requested by Parentprovided such financial benefits on a pro rata basis (i.e., and in each caseproportion to the respective outstandings under the facilities, if reasonably requested by Parent, with the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewithFuture Advance not being considered outstanding under this Agreement until actually distributed to Borrower under Section 5.13 of this Agreement). Notwithstanding anything in this Section 6.15 to the contraryforegoing, in no event shall the Company be required in connection with its obligations under this Section 6.15 to foregoing provisions provide for (i) incur pledges of stock in Subsidiaries of the Borrower, provided Lender receives unsecured guaranties of the Obligations from Subsidiaries of the Borrower in lieu of such pledges or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parent, (ii) incur Lender to receive any additional financial incentives, paydowns or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any additional credit support in conjunction with the Borrower’s prepayment of obligations under the foregoing, unless Parent provides Additional Credit Facility with proceeds from VantagePoint’s exercise of warrants issued by the funding to the Company therefor, (iii) amend or agree to amend any Existing Debt Document, which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to Borrower that VantagePoint holds as of the Closing Date. Borrower shall promptly deliver copies of all notices, unless contingent upon demands, reports or requests given to, or received by Borrower from the occurrence Additional Credit Lender, and shall notify Lender within two (2) Business Days after Borrower receives notice or acquires knowledge of any default or any condition or event that with the Closing, (v) take any action that passage of time would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default under the Additional Credit Facility, in each case to the extent the same relate to failures to perform or violation under, or give rise to any right of termination, cancellation, or acceleration comply with the Override Sections. Promptly upon Borrower obtaining knowledge of any right such default under the Additional Credit Facility, Borrower shall deliver a certificate of such Borrower’s chief financial officer or obligation similar officer specifying the nature and period of the Company existence of such condition or its Subsidiaries event and what action Borrower has taken, is taking or proposes to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contracttake, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiariesif any, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedthereto.
Appears in 1 contract
Existing Indebtedness. If requested by Parent, On the Company shall use reasonable best efforts to cooperate with Parent Initial Borrowing Date and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, documents, or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions. If and after giving effect to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption of the relevant notes or debentures) at the Closing (or such other date thereafter as agreed to by Parent Transaction and the Company)Loans incurred on the Initial Borrowing Date, which redemption shall be the sole responsibility neither Parent nor any of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith (including with respect to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, shall have any preferred stock or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to Indebtedness outstanding except for (i) incur or agree to incur any out-of-pocket expenses, unless they are promptly reimbursed by Parentthe Loans, (ii) incur or agree to incur any commitment, tender, consent, amendment fee or any fee similar to any the Senior Unsecured Notes (which shall constitute Indebtedness of the foregoing, unless Parent provides the funding to the Company thereforonly), (iii) amend or agree Indebtedness existing pursuant to amend any Existing Debt Document, which amendment is not conditioned on the ClosingEarnout Agreement, (iv) incur any liability Indebtedness of Xxxxxx in connection therewith prior an aggregate principal amount not to exceed $90 million represented by the Closing Date, unless contingent upon the occurrence of the ClosingExisting Seller Installment Note, (v) take any action that would unreasonably interfere with or unreasonably disrupt Indebtedness of Xxxxxx in an aggregate principal amount not to exceed $5 million represented by the normal operations and management of the Company and its SubsidiariesExisting Seller Subordinated Note, (vi) take any action that Indebtedness existing pursuant to the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate Existing Seller Letter of incorporation or bye-laws (or comparable documents)Credit, (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right the Existing Seller Letter of termination, cancellation, or acceleration Credit Collateral Agreement and the Existing Seller Letter of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its SubsidiariesCredit Agreement, (vii) waive or amend any terms Indebtedness of this Agreementthe Borrower pursuant to the Parent Subordinated Intercompany Note, (viii) take any action that could reasonably be expected Indebtedness pursuant to cause any representation one or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, more Transaction Intercompany Notes and (ix) provide access to or disclose information that certain intercompany indebtedness and other indebtedness as is listed on Schedule VI (with the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, Indebtedness described in this clause (x) fund any repaymentbeing herein called "Scheduled Existing Indebtedness" and, redemptiontogether with the Indebtedness described in clauses, cash collateralization(iv), or provide any “backstop” letters (v) and (vi) above being herein called the "Existing Indebtedness"), which Scheduled Existing Indebtedness shall not exceed $25,000,000 in aggregate principal amount. On and as of credit prior the Initial Borrowing Date, all of the Existing Indebtedness shall remain outstanding after giving effect to the Closing, Transaction and the other transactions contemplated hereby without any default or (xi) events of default existing thereunder or arising as a result in any of the Company’s Transaction and the other transactions contemplated hereby (except to the extent amended or any of its Subsidiaries’ Representatives incurring any personal liability with respect waived by the parties thereto on terms and conditions satisfactory to any matters relating to this Section 6.15. Parent shall defend, indemnifythe Agent and the Required Banks), and hold harmless there shall not be any amendments or modifications to the CompanyDebt Agreements other than as requested or approved by the Agent or the Required Banks. On and as of the Initial Borrowing Date, any of its Subsidiaries, the Agent and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection the Required Banks shall be satisfied with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to amount of and the contrary, each terms and conditions of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedall Existing Indebtedness.
Appears in 1 contract
Existing Indebtedness. If requested by ParentThe Agent shall have received evidence satisfactory to the Agent and the Lenders that, after giving effect to the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in taking such actions as are necessary under (x) the indentures listed in item (iii) of Section 4.16 of the Company Disclosure Letter and (y) the credit agreements listed in Section 4.03(c) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect consummation of the Transactions, including delivering (i) the Borrower and its Subsidiaries shall not be liable for or causing have outstanding any Indebtedness which is of the type of Indebtedness which would appear as a Subsidiary to deliver any such notices, agreements, documents, liability on (or instruments necessary, proper, or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel would be required to appear as a liability on) the consolidated balance sheet of the Borrower (and not of the type required solely to be delivered thereunder included in connection with the Transactions. If footnotes thereto) and which Indebtedness shall include, without limitation, Indebtedness for borrowed money and Capitalized Lease Obligations, other than (A) the Loans outstanding hereunder as contemplated by Section 4.1(n) and (B) Indebtedness permitted under Section 7.2 (but excluding Indebtedness described in Section 7.2(a)) (collectively, the "SURVIVING DEBT"), and (ii) the Borrower and each of its Subsidiaries shall have paid in full all other Indebtedness of the Borrower and each of its Subsidiaries existing prior to the extent reasonably requested by Parent in writing, the Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in either (a) arranging for the termination of Existing Debt Documents (or redemption making of the relevant notes or debenturesinitial Loans hereunder (all of the foregoing Indebtedness described in the foregoing clause (i) at the Closing and (or such other date thereafter ii) referred to collectively as agreed to by Parent and the Company"EXISTING DEBT"), which redemption . The Agent shall be satisfied that the sole responsibility of Parentexecution and delivery of, and the procurement performance by each of customary payoff letters the Borrower and other customary release documentation in connection therewith (including with respect its Subsidiaries of its respective obligations under, each Transaction Document to the Existing Revolving Credit Facility) or (b) obtaining any consents required under any Existing Debt Documents to permit the which it is a party and consummation of the Transactions thereunder and obtaining does not violate, conflict with or cause a default under any amendments to document or other consents under the instrument evidencing Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Company shall, and Debt. The Agent shall cause its Subsidiaries to, execute and deliver such customary notices, agreements, documents, or instruments necessary in connection therewith. Notwithstanding anything in this Section 6.15 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.15 to have received (i) incur or agree payoff and lien termination and release agreements, in form and substance satisfactory to incur any out-of-pocket expensesthe Agent, unless they are promptly reimbursed by Parentfrom each creditor of the Borrower and its Subsidiaries with respect to Existing Debt other than Surviving Debt, and (ii) incur such UCC Amendments (or agree to incur any commitmentits equivalent), tenderintellectual property lien releases in recordable form in all applicable jurisdictions, consentand other lien and mortgage release and termination agreements, amendment fee or any fee similar to any evidence of the foregoingrelease of federal and state tax liens, unless Parent provides the funding all in form and substance satisfactory to the Company thereforAgent, (iii) amend or agree to amend any Existing Debt Documentas the Agent shall request, duly executed by the appropriate Person in favor of which amendment is not conditioned on the Closing, (iv) incur any liability in connection therewith prior to the Closing Date, unless contingent upon the occurrence of the Closing, (v) take any action that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and its Subsidiaries, (vi) take any action that the Company reasonably believes could (A) violate its or its Subsidiaries’ certificate of incorporation or bye-laws (or comparable documents), (B) violate any applicable Law, (C) constitute a default or violation under, or give rise to any right of termination, cancellation, or acceleration of any right or obligation of the Company or its Subsidiaries or to a loss of any benefit to which the Company or its Subsidiaries is entitled under any provision of any Contract, or (D) result in the creation or imposition of any Lien on any asset of the Company or its Subsidiaries, (vii) waive or amend any terms of this Agreement, (viii) take any action that could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached or to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement, (ix) provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (x) fund any repayment, redemption, cash collateralization, or provide any “backstop” letters of credit prior to the Closing, or (xi) result in any of the Company’s or any of its Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.15. Parent shall defend, indemnify, and hold harmless the Company, any of its Subsidiaries, and any of their respective Representatives from, against, and in respect of any and all claims, liabilities, losses, damages, judgments, fines, penalties, costs, and expenses (including fees of legal counsel) resulting from or incurred in connection with the cooperation hereunder or any information utilized in connection therewith. Notwithstanding this Section 6.15 or anything in this Agreement to the contrary, each of the parties hereto agrees that it is not a condition to the Closing that the Debt Financing, payoff letters, consents, amendments, or other similar actions described in this Section 6.15 and Section 6.14 be obtainedsuch Liens were granted.
Appears in 1 contract
