Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof. (b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely: (i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice; (ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions; (iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business; (iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser; (v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter; (vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and (vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewith.
Appears in 2 contracts
Sources: Purchase Agreement (International Paper Co /New/), Purchase Agreement (Weyerhaeuser Co)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing Prior to the utilization of any “market flex” provisions contained therein)Company Merger Effective Time, including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligationsCompany shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall use commercially reasonable efforts to cause the other members of the Seller Group Company Advisor and its and their respective officers, employees and advisors (including legal counsel and accountants) Company Sub-Advisor to, provide to Purchaser all cooperation, on a timely basis, as Parent such cooperation reasonably requested by Purchaser Parent to cause the conditions and covenants in the Debt Financing Letters to be satisfied or otherwise that is necessary, proper, advisable or desirable, or reasonably requested by Parent, in connection with the Debt Financing (or any Alternative Financing), which issuances of Parent Equity Interests permitted by Section 5.2. Such cooperation shall include using reasonable best efforts to timelyto:
(i) cause senior management (A) furnish Parent and other appropriate employees the Debt Financing Sources as promptly as practicable with (1) financial statements regarding the Company and its Subsidiaries as are (x) reasonably requested by Parent (including on behalf of the Business to participate Debt Financing Sources), (y) within the Company’s control and (z) customarily prepared by the Company or for the Company by the Company Advisor or the Company Sub-Advisor in a reasonable number the ordinary course of meetingsbusiness, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii2) furnish Purchaser Parent and the relevant financing sources non-financial Debt Financing Sources as promptly as practicable with information regarding the tenants in the properties securing the Debt Financing of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A securitizations including financial data, audit reports and other financial and property-related information, provided that such information is (x) requested by Parent (including on behalf of the Securities Act Debt Financing Sources), (y) currently in the Company’s possession or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated actually received by the Company after the date hereof and prior to the Closing and (z) which the Company is permitted to share with Parent and their Debt Financing Sources, (it being understood 3) such third party reports regarding the Company’s properties as are currently in the Company’s possession or are actually received by the Company after the date hereof and prior to the Closing and (4) rent rolls, schedules of tenant security deposits, aging reports, schedules of outstanding tenant improvement and leasing commission, operating and capital budgets, insurance policies, existing surveys, zoning reports, leases, management agreements, licenses, information related to RIDEA assets, and documentation regarding Medicare and Medicaid and other healthcare related items, in each case, if and only to the extent that Purchaser the foregoing are (x) currently in the Company’s possession, (y) actually received by the Company after the date hereof and prior to the Closing or (z) customarily prepared by the Company or for the Company by the Company Advisor or the Company Sub-Advisor in the ordinary course of business;
(ii) execute and deliver any representation letter to auditors and any other certificate or document and back-up therefor and other certificates or documents required to satisfy the conditions in the Debt Financing Letters, or as otherwise may be reasonably requested by Parent or the Debt Financing Sources, and otherwise reasonably facilitate the pledging of collateral; provided, that the Company shall have not be required to execute any document in connection with this Section 6.13(a)(ii) that would be effective at any time before the right Company Merger Effective Time or participate in negotiating any definitive agreements described in this Section 6.13(a)(ii) or otherwise with respect to include the information provided by Seller under this clause Debt Financing;
(iii) use reasonable best efforts to obtain accountants’ comfort letters, consents of accountants, corporate and the other Required Information in a current report filed with the SEC) facilities ratings, consents to transfer and waivers of first refusal, consents from governmental agencies (such informationas licenses for RIDEA assets, together with the Audited Business Financial StatementsPILOT or similar tax incentive programs), the Quarterly Financial Statementslandlord waivers and estoppels, the Monthly Financial Reportsnon-disturbance agreements, any replacements or restatements thereof legal opinions, surveys and supplements theretotitle insurance (including providing reasonable access to Parent and its Representatives to all owned real property and leased real property), andengineering reports, in the case of the Audited Business Financial Statements, the auditors’ report thereon, environmental and including consents of accountants for use of their reports in any materials other inspections and other documentation and items relating to the Debt Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by Parent (it being understood that all written communications with such Persons in connection with the relevant financing sourcesforegoing shall either be (x) prepared by the Company and in form reasonably satisfactory to Parent or (y) at the request of the Company, prepared by Parent and in form reasonably acceptable to the Company);
(iv) grant Parent and the Debt Financing Sources access to the Company and Company Subsidiaries’ respective owned real estate properties and, subject to obtaining required third party consents with respect thereto (which the Company shall use reasonable efforts to obtain), leased real estate properties that will secure the Debt Financing (including cooperating in and facilitating the completion of field examinations, collateral audits, asset appraisals, surveys, Phase I environmental site assessments and engineering/property condition reports) (provided, however, that, notwithstanding anything to the contrary in this Agreement, (A) none of Parent, the Debt Financing Sources or their Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such property, unless and only to the extent (I) recommended pursuant to a third party environmental report and (II) Parent shall first have delivered to the Company a written request to conduct such testing or sampling, which request shall (x) specify each property to be tested or sampled, and include a copy of the third-party environmental report recommending such testing or sampling and (y) include a representation from an authorized officer of Parent to the effect that (1) such testing or sampling is reasonably necessary in order to effect the Debt Financing without any reduction in the loan amount, or increase in reserves, in connection with the applicable environmental issue and (2) the representations and warranties in Section 4.24 (modified to substitute “as of the date of this request” for each instance of “as of the date of this Agreement”) are true and correct in all material respects on the date of such request (B) Parent and the Debt Financing Sources shall schedule and coordinate all inspections with the Company and shall give the Company at least two (2) business days’ prior written notice thereof, setting forth the inspection that Parent, the Debt Financing Sources or their Representatives intend to conduct and (C) the Company shall be entitled to have representatives present at all times during any such inspection; and
(viiv) otherwise reasonably cooperate facilitating the pledging or the re-affirmation of the pledge of collateral (including with respect to obtaining and delivering of pay-off letters and Lien terminations, in each case contingent on the consummation of the Mergers, in form and substance reasonably satisfactory to Parent, and other cooperation in connection with the marketing efforts repayment or other retirement of Purchaser existing Indebtedness and its financing sources for the release and termination of any and all related Liens in connection with the consummation of the Mergers).
(b) Notwithstanding anything in this Section 6.13 to the contrary, until the Company Merger Effective Time occurs, neither the Company nor any of the Financing or any Alternative Financing; providedCompany Subsidiaries, however, that neither Seller nor any other member of their respective officers or directors, as the Seller Group case may be, shall be required to (A) pay any commitment or other feefee in connection with any proposed Debt Financing, (B) enter into any definitive agreement, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents, related to any proposed Debt Financing that will be effective at any time before the Company Merger Effective Time (provided, the Company shall reasonably cooperate to name designees of Parent to be officers of the Company effective immediately prior to the Company Merger Effective Time so that such officers may execute and deliver such documents (and such officers shall have no other authority until the Company Merger Effective Time)), (C) unless promptly reimbursed by Parent upon written request of the Company, be required to incur any other material liability, out of pocket expenses (other than immaterial incidental expenses) in connection with this Section 6.16the Debt Financing, (D) have the Financing pre-Closing Board of Directors of the Company or any Alternative committee thereof, or the Company Advisor or the Company Sub-Advisor, adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or (E) except as expressly provided above, take any corporate actions prior to the Company Merger Effective Time to permit or facilitate the consummation of the Debt Financing. Purchaser shall .
(c) Parent shall, promptly upon request by the Company, reimburse Seller the Company and its Subsidiaries for all reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiaries in connection with the Financing such cooperation and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Sellerthe Company, the other members of the Seller Group Company Subsidiaries and their respective directors, officers, employees and representatives Representatives from and against any and all Losses damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing (or any Alternative Financing) and any information utilized used in connection therewiththerewith (other than information provided by the Company or any of the Company Subsidiaries) and all other actions taken by the Company, the Company Subsidiaries and their respective Representatives taken at the request of Parent pursuant to this Section 6.13, except to the extent finally determined by a court of competent jurisdiction to have arisen from the Company’s, any Company Subsidiary’s or their respective Representatives’ fraud, gross negligence, willful misconduct or bad faith.
(d) All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreements; provided, that Parent and Merger Sub shall be permitted to disclose such information to any Debt Financing Sources or prospective Debt Financing Sources and other financial institutions and investors that are or may become parties to the Debt Commitment Letter and to any underwriters, initial purchasers or placement agents in connection with the Debt Financing, or to their respective counsel and auditors subject to customary confidentiality arrangements for use by any of them of such information in connection with the Debt Financing, and to rating agencies in connection with obtaining ratings of the Debt Financing.
Appears in 2 contracts
Sources: Merger Agreement (Griffin-American Healthcare REIT II, Inc.), Merger Agreement (Northstar Realty Finance Corp.)
Financing Cooperation. (a) Purchaser shall Tempo will use reasonable best efforts to consummate cause the Financing on the terms aggregate indebtedness for borrowed money of Tempo and conditions set forth in the Debt Commitment Letter its Subsidiaries and the Fee Letter Tempo Blockers outstanding as of immediately following the Closing (assuming the consummation of the Transactions contemplated hereby) to not be in excess of $2.276 billion, or such greater amount of indebtedness for borrowed money as may be agreed by Tempo and FTAC (such amount, the “Target Debt Amount”). In furtherance of the foregoing, Tempo shall have the option to elect to repay, refinance or obtain any Debt Financing, in each case which election shall be made in consultation with FTAC. To the extent Tempo determines, in consultation with FTAC, to obtain any Debt Financing, Tempo shall, and shall cause its Subsidiaries to, use its reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein)do all things necessary or appropriate to arrange for and obtain such Debt Financing, including using reasonable best efforts to (i) negotiate negotiate, syndicate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the such Debt Commitment Letter and the Fee Letter and Financing, (ii) satisfy on a timely basis (or obtain the waiver of) all terms, conditions and covenants that may be required in connection with such Debt Financing, including with respect to the payment of any commitment, engagement or placement fees, and (iii) otherwise consummate and cause such Debt Financing set forth in such definitive agreements that are to be satisfied funded at or prior the Closing; provided, that, (x) Tempo shall reasonably consult with FTAC in respect of the foregoing and consider in good faith any comments provided by PurchaserFTAC in respect thereof and (y) FTAC and its Representatives shall reasonably cooperate in connection therewith. Purchaser In lieu of, or in addition to, any Debt Financing, Tempo may determine, in consultation with FTAC, to refinance, rollover or enter into a repricing transaction in respect of all or a portion of the indebtedness pursuant to the Tempo Financing Agreements (any such financing, “Continued Financing”); provided that such Continued Financing shall comply be in full force and effect without any breach or default thereunder as of immediately prior to and immediately following the Closing. In connection with its obligationsany indebtedness to be repaid at or in connection with Closing, and Tempo will use its reasonable best efforts to enforce its rightstimely deliver such notices, under documents and instruments, including customary payoff letters, lien release documents and conditional redemption notices (in each case, in consultation with and in form reasonably acceptable to, FTAC) in advance of the Debt Commitment Letter Closing (and in any event in accordance with the Fee Letter. Purchaser shall give Seller prompt notice Tempo Financing Arrangements or the terms of any material breach by any party Debt Financing or Continued Financing) to the Debt Commitment Letter extent required in connection with any such repayment. Notwithstanding anything to the contrary set forth herein, in no event will Tempo be in breach of which Purchaser has become awareany of its obligations under this Agreement, including with respect to its covenants set forth in this Section 10.10, due to any failure of any amount to be funded in accordance with the PIPE Investment, the FTAC Financing, the Additional Cannae Subscription or any purported termination Permitted Equity Financing when otherwise required in accordance with the terms of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure extent related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any amount of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liabilityAvailable Cash Amount, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred each case in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewithitself.
Appears in 2 contracts
Sources: Business Combination Agreement (Foley Trasimene Acquisition Corp.), Business Combination Agreement (Foley Trasimene Acquisition Corp.)
Financing Cooperation. (a) Purchaser The Company and Parent shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements cooperate with each other with respect to customary actions for transactions of this type that are reasonably requested by Parent to be taken by the Financing consistent Company or its Subsidiaries under any of the Company’s outstanding debt securities, the Company Credit Agreement (or commitment letters in respect of bank or institutional loans) in connection with the terms and conditions set forth in Merger; provided that none of the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (Company, its Subsidiaries or obtain the waiver their Representatives shall be required to execute or deliver, or agree to any change or modification of) all conditions , any agreement or document that is effective prior to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, Closing or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit be effective if the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall Closing does not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereofoccur.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to From and after the Closingdate of this Agreement and through the earlier of the Effective Time and the date on which this Agreement is terminated in accordance with Article VII, Seller the Company shall, and shall cause the other members each of the Seller Group and its Subsidiaries to, use its and their respective officers, employees and advisors (including legal counsel and accountants) reasonable best efforts to, provide and cause its and their Representatives to, provide, after a request from Parent or any of its Representatives to Purchaser all cooperationdo so, on a timely basis, such customary assistance and cooperation as is reasonably requested by Purchaser Parent to assist Parent in the arrangement, syndication and consummation of bank or capital markets or institutional debt financing transactions anticipated to be consummated in connection with the Financing transactions contemplated by this Agreement (or any Alternative the “Financing”), which cooperation shall include using reasonable best efforts to timely:
including (i) cause senior management providing the Company Reserve Reports, lease operating statements and other appropriate employees of production reports with respect to the Business Company Oil and Gas Interests evaluated in the Company Reserve Reports for the fiscal year ended December 31, 2018 and for each fiscal quarter thereafter ending at least 45 days prior to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
the Closing Date; (ii) assist with the preparation of materials (including business projections and similar materials) for rating agencyproviding other financial statements, lender and investor presentationsdata, offering documents, private placement memoranda, bank information and syndication memorandaassistance and cooperation reasonably necessary for Parent in each such case to prepare pro forma combined financials pursuant to the terms of the Commitment Letters; (iii) providing other financial statements, prospectusesfinancial data and information regarding the Company and its Subsidiaries reasonably requested by Parent to consummate the Financing and to the extent customary, marketing materials consenting to the inclusion thereof in the Financing (such consent not to be unreasonably withheld, conditioned or delayed); and similar documents (iv) providing Parent and its Representatives such information regarding the Company’s business, and making available such personnel, as Parent may reasonably request in order to assist Parent in connection with any activities relating to any Financing. All non-public information exchanged pursuant to this Section 5.18 shall be subject to the Confidentiality Agreement.
(c) Notwithstanding anything to the contrary set forth in this Section 5.18, in connection with the Financing or any Alternative Financingother action contemplated by this Section 5.18, including (i) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to cause management take any action pursuant to this Section 5.18 to the extent such requested action would reasonably be expected to interfere unreasonably with the ongoing business or operations of the Company and its Subsidiaries; (ii) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or take any other personnel action under this Section 5.18, or execute or deliver any certificate, document, legal opinion, instrument or agreement or agree to participate any change or modification of any existing certificate, document, instrument or agreement in related drafting sessions;
connection therewith, in each case, that (A) is effective prior to the Effective Time or that would be effective if the Effective Time does not occur or (B) would be inaccurate in light of the facts and circumstances at the time approved, authorized, executed or delivered, as applicable; (iii) furnish Purchaser and the relevant financing sources non-financial information none of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act Company or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate its Subsidiaries or any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in respective Representatives shall become bound by any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any terms of the Financing or any Alternative Financingother action contemplated by this Section 5.18 prior to the Effective Time; provided, however, that neither Seller nor any other member (iv) none of the Seller Group Company or its Subsidiaries or any of their respective Representatives shall be required to pay any commitment or other fee, similar fee or incur any other material liabilitycost or expense for which it has not received simultaneous or prior reimbursement or, in connection with this Section 6.16respect to immaterial costs or expenses, the Financing for which it is not indemnified by or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred on behalf of Parent in connection with the Financing and or any Alternative Financing, including such costs incurred other action contemplated by this Section 5.18 prior to the Effective Time; (v) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection with compliance the Financing or any other action contemplated by this Section 5.18, the disclosure of which, in the reasonable good faith judgment of the Company, is restricted by Contract with an unaffiliated third party or applicable law, is subject to attorney-client privilege (except that such person shall use commercially reasonable efforts to disclose such information in a way that would not jeopardize such privilege) or would result in the disclosure of any trade secrets or the violation of any confidentiality obligation; (vi) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to prepare or deliver any financial information in a form not customarily prepared by the Company or its Subsidiaries in the ordinary course of their business and not readily available to it; (vii) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to deliver any legal opinion or negative assurance letter in connection with the Financing or any other action contemplated by this Section 6.14. Purchaser 5.18; (viii) none of the Company or its Subsidiaries or any of their respective Representatives shall indemnify be required to take any action that would reasonably be expected to conflict with, result in any violation or breach of, or default (with or without notice, lapse of time, or both) under, any of their respective organizational or governing documents, or any applicable law or Contracts; (ix) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to take any action that would cause the Company or any of its Subsidiaries to breach any representation, warranty, covenant or agreement in this Agreement; (x) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to take any action that would reasonably be expected to cause any director, officer, employee, shareholder or Representative of the Company or any of its Subsidiaries to incur any personal liability; and (xi) none of the Company or its Subsidiaries, prior to the Effective Time, shall be an issuer or other obligor with respect to the Financing.
(d) Parent shall indemnify, defend, and hold harmless Sellerthe Company, the other members of the Seller Group its Subsidiaries and their respective directors, officers, employees and representatives Representatives (the “Section 5.18 Indemnified Parties”) from and against any and all Losses losses, damages, claims, costs, expenses (including reasonable attorneys’ fees), interest, awards, judgments and penalties suffered or incurred by any of them in connection with (i) any action taken by them at the arrangement request of Parent pursuant to this Section 5.18 or the Financing Preferred Redemption, (or any Alternative Financingii) and any information utilized in connection therewith.therewith (other than information provided
Appears in 2 contracts
Sources: Merger Agreement (Carrizo Oil & Gas Inc), Merger Agreement (Callon Petroleum Co)
Financing Cooperation. (a) Purchaser Prior to Closing, the Sellers shall use and shall (subject to any legal limitations) cause the Target Companies to use commercially reasonable best efforts endeavours to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing provide to the utilization Purchaser, at the Purchaser’s sole expense, such cooperation as the Purchaser may reasonably request for the purposes of any “market flex” provisions contained therein), including using reasonable best efforts to assisting the Purchaser in respect of (i) negotiate the preparation of its debt financing (including syndication) arrangements and enter into definitive agreements (ii) the preparation of the refinancing of the existing financing (including hedging), bank guarantee or similar requirements of the Target Companies which have to be refinanced upon Closing due to change of control or similar provisions or need to be repaid by Closing under the terms of the Purchaser's debt financing or such other financing which is to be repaid and/or cancelled within 30 (thirty) calendar days of the Closing Date or, with respect to the Financing consistent Colombian Entities, within 30 (thirty) calendar days of a Deferred Closing, as the case may be, including any change of control or similar waivers, security releases, and the submission of prepayment and other notices, in connection with the terms and conditions set forth in the Debt Commitment Letter transactions contemplated under this Agreement and the Fee Letter other Transaction Documents. The Sellers and the Purchaser shall cooperate (iieach acting reasonably) satisfy on a timely basis (or obtain the waiver of) all conditions prior to the Financing set forth in such definitive agreements Closing Date to identify the Financial Debt that are is subject to any cancellation right of the financing party due to a change of control or similar provision that may be satisfied triggered by Purchaser. Purchaser virtue of the transactions contemplated by this Agreement or other Transaction Documents or shall comply otherwise be repaid and/or cancelled within 30 (thirty) days of the Closing Date or, with its obligationsrespect to the Colombian Entities, within 30 (thirty) days of a Deferred Closing, as the case may be, and use its reasonable best efforts to enforce its rights, identify any Prepayment Amounts in respect thereof. Nothing in this clause 15.4 shall require any member of the Sellers' Groups or any Target Company to take any action under this clause 15.4 to the Debt Commitment Letter and extent doing so would (A) interfere or disrupt unreasonably with the Fee Letter. Purchaser shall give Seller prompt notice business or operations of any material breach by any party to member of the Debt Commitment Letter of which Purchaser has become aware, Sellers' Groups or any purported termination Target Company or (B) require any member of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, Sellers' Groups or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions Target Company to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit conflict with or violate any such entity's (x) constitutional documents, (y) any of its contracts or duties of confidentiality unless each recipient of the termination of, information agrees to back-to-back confidentiality agreements or (z) any laws or (C) result in any member of the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all Sellers' Group or any portion Target Companies or any of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors directors, employees, advisors, agents or other representatives incurring or exposing itself to any personal liability or (including legal counsel and accountantsD) torequire any member of the Sellers' Groups or any Target Company to enter into any documentation or to make any declarations or statements or to assume, provide incur or exposing itself to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser any liability or obligations (other than (i) any prepayment and/or cancellation notices in connection with the Financing (any Financial Debt which can effectively be made and are so made explicitly subject to Closing having occurred and / or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with any documentation by the preparation of materials Target Companies (including business projections release documentation) which is only released and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with effective as from the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Closing). Purchaser shall have the right to include the information provided by Seller under this clause (iii) indemnify, defend and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other hold each member of the Seller Group shall be required to pay any commitment or other feeSellers' Groups, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing each Target Company and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members each of the Seller Group and their respective directorsrepresentatives (i.e., employees, officers, employees directors, advisers and representatives other representatives) harmless from and against any and all Losses suffered or liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees) incurred by any such member of them the Sellers' Groups or Target Company and their respective representatives in connection with any action or support granted under this clause 15.4 except to the arrangement extent that such liabilities, losses, damages, costs, and expenses arise out of gross negligence or wilful misconduct by a member of Sellers' Groups or a Target Company. The Sellers shall only be liable for a breach of the Financing (or any Alternative Financing) and any information utilized obligations under this clause 15.4 in connection therewithcase of wilful misconduct and/or gross negligence.
Appears in 2 contracts
Sources: Sale and Purchase Agreement, Sale and Purchase Agreement (Linde PLC)
Financing Cooperation. (a) Purchaser Prior to the Effective Time, the Company agrees to, and shall use cause its Subsidiaries to, provide all reasonable best efforts to consummate cooperation in connection with the arrangement of the Debt Financing on of the terms and conditions set forth in type contemplated by the Debt Commitment Letter and as in effect on the Fee Letter date of this Agreement, including to (which reasonable best efforts shall include agreeing v) furnish to Parent historical financial information regarding the Company required pursuant to the utilization of any “market flex” provisions contained therein)Debt Commitment Letter, including using reasonable best efforts (w) provide Parent, at least three Business Days prior to (i) negotiate the Closing Date all documentation and enter into definitive agreements other information with respect to the Financing consistent Company as shall have been reasonably requested in writing by Parent at least ten Business Days prior to the Closing Date that is required in connection with the terms Debt Financing by regulatory authorities under applicable “know-your-customer” and conditions set forth in anti-money laundering rules and regulations, including the Debt Commitment Letter PATRIOT Act, as amended and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice requirements of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller31 C.F.R. §1010.230, (x) permit cause individuals who will continue as officers, directors or managers of the Company after the Closing to authorize, execute and deliver any amendment or modification toloan agreements, notes, letters of credit, or any waiver of any material provision or remedy under, other similar documentation reasonably required in connection with the Debt Commitment Letter Financing and board or manager consents approving the Fee Letter Debt Financing (provided that all such authorization, execution and delivery shall be deemed to become effective only if such amendmentand when the Closing occurs) and as are reasonably requested by P▇▇▇▇▇, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, assist in the negotiation of definitive documentation and facilitating the pledging of collateral and the granting of liens or take any action that would permit security interests (and the termination of, perfection thereof) as reasonably requested by Parent on behalf of the financing sources under the Debt Commitment Letter; providedprovided that no such documentation, howeverpledge, lien or security interest shall be effective until the Closing occurs and (z) execute a customary “solvency” certificate (provided that Purchaser may terminate such execution and delivery shall be deemed to become effective only if and when the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunderClosing occurs). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such ; provided that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter Company and the Fee Letter and shall not, without the consent of Seller (which consent its Subsidiaries shall not be required to: (i) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses; (ii) commit to take any action that is not contingent upon the Closing; (iii) give any indemnities; (iv) take any action that, in the good faith determination of the Company, would unreasonably withheld)interfere with the conduct of the business of the Company and its Subsidiaries, include it being understood and agreed that the actions enumerated in clauses (v) through (z) above do not unreasonably interfere with the conduct of the business of the Company or any conditions of its Subsidiaries; (v) take any action that could reasonably be expected to result in a contravention of, violation or breach of, or default under, this Agreement, the Company Charter, the Company Bylaws, any organizational document of the Company’s Subsidiaries, any Material Contract (including confidentiality provisions therein) or any Applicable Law; (vi) provide access to or disclose information which would result in waiving any attorney-client privilege, work product or similar privilege; (vii) prepare any pro forma financial statements or provide any information or assistance relating to (A) the proposed aggregate amount of the Debt Financing, assumed interest rates, dividends (other than those declared or paid prior to the consummation Closing) and fees and expenses relating to the incurrence of such alternative financing the Debt Financing, (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing or (C) any financial information related to Parent; (viii) take any action which would contravene any position taken in any financial statements; or (ix) pay any commitment or other similar fee or incur any other cost or liability in connection with the Debt Financing prior to the Closing, except for any liabilities that are not substantially conditioned on the same as Closing having occurred. Nothing in this Section 8.07 will require the conditions Company Board to adopt resolutions approving the Financing set forth in agreements, documents or instruments pursuant to which the Debt Commitment Letter Financing is obtained or otherwise be materially less favorable to the interests of Seller (pledge any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations collateral with respect to the Debt Financing under this Section 6.16(a) shall also apply prior to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereofClosing.
(b) Prior to the ClosingParent shall promptly, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated upon request by the Financing (it being understood that Purchaser shall have Company, reimburse the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants Company for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for all reasonable out-of-pocket costs and expenses incurred by the Company or its Subsidiaries in connection with the Financing and cooperation contemplated by Section 8.07(a), except to the extent that the same results directly from (i) the gross negligence, bad faith, fraud or willful misconduct of the Company or any Alternative Financingof their Representatives, including such costs incurred in each case, as determined by a final non-appealable judgment of a court of competent jurisdiction or (ii) any material inaccuracy of any historical financial information furnished in writing by or on behalf of the Company for use in connection with compliance the Debt Financing. The Company and its counsel shall be given a reasonable opportunity to review and comment on any materials that are to be presented during any road shows or bank presentations conducted in connection with Section 6.14the Debt Financing, and Parent shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Purchaser Parent shall defend, indemnify and hold harmless Sellerthe Company, the other members of the Seller Group its Subsidiaries and their respective directors, officers, employees and representatives from Affiliates for and against any and all Losses losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing (or any Alternative Financing) Financing and any information utilized in connection therewith (other than information provided by the Company expressly for use in connection therewith).
(c) All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Agreement shall be kept confidential in accordance with the Confidentiality Agreement.
(d) The parties hereto acknowledge and agree that the provisions contained in Section 8.07(a) represent the sole obligation of the Company, its Subsidiaries and its and their respective Representatives with respect to cooperation in connection with the arrangement of any financing to be obtained by Parent with respect to the transactions contemplated by this Agreement and no other provision of this Agreement shall be deemed to expand or modify such obligations. Parent, Holdco, Holdco II and Merger Subsidiary each acknowledge and agree that obtaining any financing is not a condition to the Closing. For the avoidance of doubt, if the Debt Financing has not been obtained, Parent, Holdco, Holdco II and Merger Subsidiary shall continue to be obligated, until such time as this Agreement is validly terminated in accordance with its terms, to complete the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Cantaloupe, Inc.), Merger Agreement (Cantaloupe, Inc.)
Financing Cooperation. (a) Purchaser Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions necessary to arrange, obtain and consummate the Debt Financing on the terms and conditions set forth described in the Debt Financing Commitment Letter and on or prior to the Fee Letter (which reasonable best efforts Closing Date. Such actions shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to efforts: (i) negotiate to maintain in full force and enter into definitive agreements with respect effect the Debt Financing Commitment in the form provided to the Financing consistent with Company on or prior to the terms and conditions set forth date hereof (or as modified in the Debt Commitment Letter and the Fee Letter and accordance herewith), (ii) to satisfy on a timely basis (or obtain the waiver of) all conditions precedent to the Debt Financing set forth in such definitive agreements the control of Parent Parties and Merger Sub that are expressly required to be satisfied by Purchaser. Purchaser shall comply with its obligationsParent Parties or Merger Sub and (iii) to negotiate, execute and use its reasonable best efforts to enforce its rightsdeliver definitive documents, under the including a credit agreement and other definitive financing documents as may be reasonably requested by Parent (“Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (xFinancing Documents”) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than reflect the terms contained in the Debt Financing Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or including, as necessary, agreeing to any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal requested changes to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained commitments thereunder in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations accordance with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Financing Commitment Letter or any related fee letter), in each case which terms shall not in any respect expand on the conditions to the funding of the Debt Financing at Closing. Each of Parent and Fee Letter Merger Sub shall not permit or consent to, without the prior consent of the Company, (x) any amendment, supplement or modification to be made to the Debt Financing Commitment (without the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed) if such amendment, supplement or modification would (A) expand or impose new conditions precedent to the funding of the Debt Financing from those set forth therein on the date hereof, (B) reasonably be expected to materially impair, delay or prevent the availability of all or a portion of the Debt Financing or the consummation of the transactions contemplated by this Agreement or (C) reduce the aggregate amount of the Debt Financing (except as set forth in force any “flex” provisions existing on the date hereof) to an amount such that Parent is not able to consummate the Closing (collectively, the “Restricted Commitment Amendments”); provided, that subject to the limitations set forth in this Section 5.13, each of Parent and Merger Sub may amend, restate, amend and restate, or otherwise modify the Debt Financing Commitment (1) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitment as of the date hereof, (2) to implement any “flex” provisions applicable thereto and (3) to amend or agree to other amendments or waivers, (y) any waiver of any remedy against the Debt Financing Sources under the Debt Financing Commitment (other than a condition to funding in favor of the lenders thereunder), or (z) early termination of the Debt Financing Commitment prior to the termination of this Agreement, in each case of the foregoing, in a manner that could reasonably be expected to materially impair, delay or prevent the consummation of the Closing. For purposes of this Agreement, references to the “Debt Financing Commitment” shall include such document(s) as permitted or required by this Section 5.13 to be amended, modified or waived, in each case from and after such amendment, modification or waiver. Promptly following any reasonable request of the Company (or its counsel), each of Parent and Merger Sub shall keep the Company informed in reasonable detail of the status of its efforts to arrange the Debt Financing.
(b) Prior Each of Parent and Merger Sub shall promptly notify the Company in writing (i) of any material breach or default by Parent or Merger Sub or any of their respective Affiliates (or, to Parent’s knowledge, the ClosingDebt Financing Sources) under the Debt Financing Commitment, and(ii) of the receipt by Parent or Merger Sub or any of their respective Affiliates or Representatives of any written notice from the Debt Financing Sources, any lender or any other Person with respect to clause any actual breach, default or termination of the Debt Financing Commitment that could reasonably be expected to materially impair, delay or prevent the consummation of the Debt Financing contemplated by the Debt Financing Commitment at Closing, (iii) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Financing Commitment, and such failure could reasonably be expected to materially impair, delay or prevent the consummation of the Debt Financing contemplated by the Debt Financing Commitment at Closing and (iv) of the termination or expiration of the Debt Financing Commitment prior to the termination of this Agreement.
(c) In the event that any portion of the Debt Financing becomes unavailable in the manner (including the “flex” conditions) or from the sources contemplated in the Debt Financing Commitment, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions necessary to arrange for and obtain as promptly as practicable following the occurrence of any such event, alternative debt financing (the “Alternative Financing”), including from alternative sources on terms and conditions that are not less favorable to Parent (including the “flex” conditions) than those set forth in the Debt Financing Commitment and in an amount sufficient to consummate the transactions contemplated hereby and perform all of its obligations hereunder, it being understood and agreed that if Parent and Merger Sub proceed with any Alternative Financing, each of Parent and Merger Sub shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing. In the event that Alternative Financing is obtained, each of Parent and Merger Sub shall promptly provide the Company with a copy of the new financing commitment that provides for such Alternative Financing (the “Alternative Financing Commitments”). If applicable, any reference in this Agreement to “Debt Financing” shall include “Alternative Financing” and any reference to “Debt Financing Commitment” shall include the “Alternative Financing Commitment”.
(d) The Company shall use its commercially reasonable efforts to provide to Parent, and shall, upon reasonable advance notice and during normal business hours, use its commercially reasonable efforts to cause the respective officers and employees of the Acquired Companies, and use its commercially reasonable efforts to cause the Representatives of the Company to provide to Parent, all cooperation reasonably requested by Parent that is reasonably required in connection with any debt assumption, any Third Party debt financing or refinancing transaction or underwritten public offering of Parent Common Shares or Parent Preferred Shares for cash that Parent may pursue prior to the Closing Date (collectively, “Financing Activities”), including using commercially reasonable efforts to do the following: (a) furnishing Parent as promptly as reasonably practicable upon request by Parent with all financial statements, financial data and other information regarding the Acquired Companies of the type that would be reasonably required by Regulation S-X or Regulation S-K promulgated under the Securities Act for a public offering of securities of Parent (including for use in Parent’s preparation of pro forma financial statements; provided, that none of the Acquired Companies or any of their respective Affiliates shall be required to prepare any projections, pro forma financial statements or pro forma adjustments); and (b) requesting the Company’s independent accountants to prepare and deliver customary “comfort letters,” dated the date of each final offering document used in connection with any securities offering by Parent (with appropriate bring-down comfort letters delivered on the closing date of any such offering), in compliance with professional standards (including providing “negative assurance” comfort and Statement on Auditing Standards No. 100 review of interim financial statements) and otherwise on terms reasonably acceptable to Parent, as the case may be; provided, however, that none of the Acquired Companies shall be required to provide cooperation under this Section 6.16(b)5.13(d) that: (i) unreasonably interferes with the ongoing business of the Acquired Companies; (ii) causes any covenant, representation or warranty in this Agreement to be breached; (iii) causes any closing condition set forth in Article 6 to fail to be satisfied or otherwise causes the breach of this Agreement or any Contract to which the any of the Acquired Companies is a party; (iv) requires the Acquired Companies to incur any Liability (including, without limitation, any commitment fees and expense reimbursement) in connection with any Financing Activity prior to and after the Closing; (v) requires the Acquired Companies or their respective directors, Seller shalltrustees, officers, managers or employees to give any legal opinion or other opinion of counsel or to execute, deliver or enter into, or perform any agreement, document, certificate or instrument (other than with respect to customary “comfort letters”) or adopt resolutions approving the agreements, documents and shall cause instruments pursuant to which the other members Financing Activities is obtained that is not contingent upon the Closing or that would be effective at or prior to the Partnership Merger Effective Time; (vi) requires the Acquired Companies to provide any information that is prohibited or restricted by applicable Law or applicable confidentiality undertaking or that constitutes privileged information or attorney-client work product; (vii) requires the Acquired Companies to take any action that is prohibited or restricted by, or will conflict with or violate, its Organizational Documents, or would result in a violation or breach of, or default under, any agreement or Contract to which the Acquired Companies is a party; (viii) results in any officer, trustee or director of the Seller Group Acquired Companies incurring personal Liability with respect to any matter relating to any Financing Activity or requires any officer, trustee, director or other Representative of the Company or any of its Subsidiaries to deliver any certificate that such officer, trustee, director or other Representative reasonably believes, in good faith, contains any untrue certifications; or (ix) requires the Acquired Companies or their Representatives, as applicable, to waive or amend any terms of this Agreement. In no event shall the Company be in breach of this Section 5.13 because of the failure to prepare any financial or other information that is not currently readily available to the Acquired Companies on the date hereof or that is not prepared in the ordinary course of business of the Acquired Companies at the time requested by Parent or for the failure to obtain review of any financial or other information by its accountants. Parent shall keep the Company reasonably informed, on a reasonably current basis, of the status of its efforts to arrange and its consummate any Financing Activity. Parent shall provide the Company with copies of any material definitive documents in respect of any Financing Activity and such other information and documentation regarding any Financing Activity and any syndication efforts, as applicable, as shall be reasonably requested by the Company. Parent shall promptly, upon request by the Company and, in any event, on the Closing Date, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses paid to Third Parties (including advisor’s fees and expenses) incurred by the Company Parties in connection with the cooperation provided or other action taken by the Company Parties pursuant to this Section 5.13(d) and indemnify and hold harmless the Company, the Company Subsidiaries and their respective officers, employees directors and advisors (including legal counsel other Representatives from and accountants) toagainst any and all liabilities, provide to Purchaser all cooperationlosses, on a timely basisdamages, as reasonably requested claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by Purchaser them in connection with the any such Financing (Activity, any information utilized in connection therewith or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees action taken by the Company or any of the Business Company Subsidiaries pursuant to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”Section 5.13(d); provided, however, that the Required Information foregoing indemnity shall not apply with respect to any willful or intentional breach of any representation, warranty, covenant or agreement of the Company or any other Acquired Company under this Agreement. All nonpublic or otherwise confidential information regarding the Acquired Companies obtained by Parent, its Affiliates or their Representatives pursuant to this Section 5.13(d) shall be kept confidential in no event include accordance with the terms of the Confidentiality Agreement. Notwithstanding the foregoing, the effectiveness of any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related documentation executed by the Acquired Companies pursuant to this Section 5.13(d) shall be subject to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any occurrence of the Financing or any Alternative Financing; providedPartnership Merger Effective Time, however, that neither Seller nor any other member and none of the Seller Group Acquired Companies and any Persons who are trustees or directors of the Acquired Companies shall be required to pay any commitment pass resolutions or other feeconsents to approve or authorize the execution of, or incur execute or deliver, any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, with an effective date prior to the Partnership Merger Effective Time. Each of the Parent Parties acknowledges and agrees that its obligations under this Agreement to consummate the Transactions, including without limitation the Mergers, shall not be conditioned in any respect on the Parent Parties’ receipt of proceeds from, or any other material liabilityaspect of, a debt assumption or any Financing Activity referenced in connection with this Section 6.165.13(d). Notwithstanding anything to the contrary, the Financing condition precedent set forth in Section 6.2(b), as it applies to the Company’s obligations under this Section 5.13(d), shall be deemed satisfied, unless the Company has materially and willfully breached its obligations under this Section 5.13(d), Parent has provided to the Company written notice of such breach within ten (10) Business Days of first becoming aware of such breach and the Company fails to cure such breach by the earlier of ten (10) Business Days after such notice is provided or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with five (5) Business Days prior to the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewithEnd Date.
Appears in 2 contracts
Sources: Merger Agreement (Pebblebrook Hotel Trust), Merger Agreement (LaSalle Hotel Properties)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller Company shall, and shall cause the other members Company Subsidiaries to, and shall cause its and their Representatives to, provide all cooperation reasonably requested by Parent in connection with financing arrangements (including assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Seller Group Mergers or the other transactions contemplated hereby. Such cooperation shall include furnishing Parent and any of its financing sources with (A) unaudited consolidated balance sheets and related consolidated statements of income, comprehensive income, stockholders’ equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for Company for each fiscal quarter ended on a date that is not a fiscal year end and that is at least forty (40) days before the Closing Date and (B) in the event that the Closing Date occurs on a date that is more than sixty (60) days following October 31, 2023, audited consolidated balance sheets and related audited consolidated statements of income, comprehensive income, stockholders’ equity and cash flows for the fiscal year ended October 31, 2023, in each case prepared in accordance with GAAP. Notwithstanding the foregoing, nothing in this Section 7.19(a) shall require such cooperation to the extent it would disrupt unreasonably the business or operations of Company and the Company Subsidiaries (taken as a whole) or require any of them to take any actions that would reasonably be expected to violate applicable Law, contract or Organizational Documents.
(b) Company shall, and shall cause the Company Subsidiaries to, use commercially reasonable efforts to, as soon as reasonably practicable after (and not prior to) the receipt of a written request from Parent to do so, on the terms and conditions specified by Parent and in compliance with all applicable terms and conditions of the applicable Company Debt Agreement, seek a waiver or waivers or an amendment or amendments to any of the Company Debt Agreements or pursue any approach chosen by Parent to the assumption, defeasance, satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee, purchase, waiver or other treatment of, the Company Debt Agreements and the indebtedness incurred pursuant thereto, in each case, subject to the occurrence of the Closing (any such transaction, a “Debt Transaction”). Company shall use commercially reasonable efforts to, and shall cause the Company Subsidiaries to use commercially reasonable efforts to, cause its and their respective officers, employees Representatives to provide cooperation and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as assistance reasonably requested by Purchaser Parent in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials Debt Transactions (including business projections taking all corporate action reasonably necessary to authorize the execution and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar delivery of any documents in connection with the Financing or any Alternative Financing, including Debt Transactions (the “Debt Transaction Documents”) to cause management be entered into prior to Closing and other personnel delivering all officer’s certificates and legal opinions required to participate be delivered in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) connection therewith (such informationcorporate action, together with the Audited Business Financial Statementsexecution and delivery not to be unreasonably withheld, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements delayed or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”conditioned)); provided, however, that the Required Information effectiveness of any such Debt Transaction Documents, officer’s certificates and legal opinions shall in no event include be expressly conditioned on the Closing. It is understood and agreed that a failure to effectuate any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related Debt Transaction shall not constitute a failure by the Company to the Business;satisfy its obligations under this Section 7.19.
(ivc) assist in obtaining accountants’ comfort letters Company shall, and auditor’s reports shall cause the Company Subsidiaries to, after (and not prior to) the receipt of a written request from Parent to do so, deliver all notices and take all other actions to facilitate the termination at the Second Merger Effective Time of all commitments in respect of audited financials each of the Company Credit Facility and any other indebtedness of the Company or Company Subsidiaries to be paid off, discharged and terminated on the Closing Date as specifically requested by Parent in writing reasonably in advance of the Closing Date, the repayment in full on the Closing Date of all obligations in respect of such indebtedness thereunder, and the release on the Closing Date of any Liens securing such indebtedness and guarantees in connection therewith. In furtherance and not in limitation of the foregoing, after (and not prior to) the receipt of a written request from Parent to do so, Company and the Company Subsidiaries shall use commercially reasonable efforts to deliver to Parent (i) at least seven (7) Business Days prior to the Closing Date, a draft payoff letter with respect to the Company Credit Facility and any other indebtedness (including consents mortgages) of accountants for use of their reposts in any materials relating Company or the Company Subsidiaries to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain be paid off, discharged and deliver at terminated on the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, Date in connection accordance with this Section 6.167.19 and (ii) at least one (1) Business Day prior to the Closing Date, an executed payoff letter with respect to the Financing Company Credit Facility and any other indebtedness (including mortgages) of Company or the Company Subsidiaries to be paid off (the “Payoff Letters”), discharged and terminated on the Closing Date, in each case in form and substance customary for transactions of this type, from the applicable agent on behalf of the Persons to whom such indebtedness is owed, which Payoff Letters together with any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred related release documentation shall, among other things, include the payoff amount and provide that Liens (and guarantees), if any, granted in connection with the Financing Company Credit Facility or such other indebtedness of Company to be paid off, discharged and terminated on the Closing Date in accordance with this Section 7.19 relating to the assets, rights and properties of the Company and Company Subsidiaries securing or relating to such indebtedness, shall, upon the payment of the amount set forth in the applicable Payoff Letter at or prior to the Second Merger Effective Time, be released and terminated.
(d) All material non-public or otherwise confidential information regarding Company or its Affiliates obtained by Parent or any Alternative Financingof its Representatives pursuant to this Section 7.19 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the transactions contemplated by this Section 7.19 that enter into confidentiality arrangements customary for financing transactions of the applicable type (including such costs incurred in connection with compliance with Section 6.14customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Purchaser Parent shall indemnify indemnify, defend and hold harmless Seller, the other members of the Seller Group Company and its Affiliates and their respective directors, officers, employees and representatives Representatives from and against any and all Losses liability, obligation or loss actually suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) cooperation provided under this Section 7.19 and any information utilized in connection therewith, except in the event such liabilities, obligations or losses arose out of or result from (i) the bad faith, gross negligence or willful misconduct by Company or its Affiliates or their respective Representatives or (ii) any information provided by or on behalf of Company or its Affiliates that is disclosed and used solely in a manner expressly permitted by this Section 7.19 or that Company has otherwise expressly consented to in writing. Parent shall, promptly upon request by Company, reimburse Company and its Affiliates and their respective Representatives for all reasonable, documented and invoiced out-of-pocket costs actually incurred by Company and such Affiliates and Representatives in connection with any cooperation provided under this Section 7.19, except in the event such costs arose out of or result from the bad faith, gross negligence or willful misconduct by Company or its Affiliates or their respective Representatives.
(e) None of the representations, warranties or covenants of Company set forth in this Agreement shall be deemed to apply to, or deemed breached or violated by, any of the actions taken by Company pursuant to, and in accordance with, this Section 7.19. Parent hereby acknowledges and agrees that obtaining any debt financing is not a condition to the consummation of the Mergers, and that if any such debt financing is not obtained, Parent will continue to be obligated, subject to the satisfaction or waiver of the conditions set forth in Article 8 and the other terms hereof, to consummate the Mergers.
Appears in 2 contracts
Sources: Merger Agreement (Urstadt Biddle Properties Inc), Merger Agreement (Regency Centers Lp)
Financing Cooperation. (a) Purchaser Upon the request of Parent, the Partnership and its Subsidiaries shall execute and deliver, at the Closing, one or more supplemental indentures, officers’ certificates, board resolutions or other documents or instruments required for the due assumption of, and succession to, the Second Lien Notes and related guarantees, security documents, intercreditor agreements and other similar agreements and instruments (collectively, the “Second Lien Notes Documents”) to the extent required by the terms of such Second Lien Notes Documents, and the Partnership and its Subsidiaries shall provide, at the sole cost of Parent, all assistance reasonably required by Parent in connection with obtaining the execution of such instruments by any other required parties.
(b) In the event that Parent desires to consummate an exchange offer, tender offer, repurchase offer, consent solicitation, discharge, defeasance, redemption or similar transaction, or any combination thereof (collectively, the “Debt Transactions”) with respect to the Second Lien Notes, the Partnership and its Subsidiaries shall use their respective commercially reasonable best efforts to, and shall use commercially reasonable efforts to consummate cause their respective Representatives (including the Financing trustee and collateral trustee for the Second Lien Notes) to, cooperate in good faith to permit such Debt Transactions to be effected on such terms, conditions and timing as reasonably requested by Parent, including if so requested by Parent, causing the Debt Transactions to be consummated substantially concurrently with, but not prior to, the Closing. Upon request of Parent, the Partnership and its Subsidiaries shall execute and deliver one or more supplemental indentures, board resolutions, officers’ certificates or other documents or instruments reasonably required in connection therewith (it being understood such documentation may be required to be executed and delivered and such amendments to the Second Lien Notes Documents may be required to be effectuated prior to Closing so long as any such amendments cease to be effective if Closing does not occur). For the avoidance of doubt, the consummation of any Debt Transaction shall not be a condition to Closing.
(c) Parent shall prepare all necessary and appropriate documentation in connection with any Debt Transactions, and the Partnership shall have a reasonable opportunity to review and comment upon such documents (the “Offer Documents”). The parties hereto shall, and shall cause their respective Subsidiaries and Representatives to, reasonably cooperate with each other in the preparation of the Offer Documents. If, at any time prior to the completion of the Debt Transactions, the Partnership or any of its Subsidiaries, on the terms one hand, or Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use commercially reasonable efforts to promptly notify the other party, and conditions an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated by or on behalf of the Partnership or its Subsidiaries to the holders of the Second Lien Notes.
(d) In connection with any Debt Transaction, Parent may select one or more dealer managers, information agents, solicitation agents, depositaries and other agents, in each case as shall be reasonably acceptable to the Partnership, to provide assistance in connection therewith, and the Partnership shall, and shall cause its Subsidiaries to, enter into customary agreements with such parties so selected; provided, that neither the Partnership nor any of its Subsidiaries shall be required to indemnify, defend or hold harmless, or pay the fees or reimburse the costs and expenses of, any such party, which indemnification, fee and reimbursement obligations shall be borne by Parent pursuant to separate agreements with such parties to which neither the Partnership nor any of its Subsidiaries shall be a party or have any obligations under.
(e) The Partnership shall, and shall cause its Subsidiaries to, at the reasonable request of Parent, deliver all notices and to take all other actions required to facilitate (i) the termination of commitments in respect of the GE Credit Facility and (ii) the repayment in full of all obligations for borrowed money outstanding thereunder and the release of any Liens securing such indebtedness and guarantees in connection therewith on the Closing Date. In furtherance of the foregoing, the Partnership and its Subsidiaries that are party to the GE Credit Facility shall deliver to Parent on the Closing Date a payoff letter and related lien release documentation with respect to such indebtedness in form and substance customary for transactions of this type from General Electric Capital Corporation, as agent on behalf of the lenders under the GE Credit Facility, which payoff letter and related lien release documentation shall, among other things, include the payoff amount and provide that liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Partnership and its Subsidiaries that are party to the GE Credit Facility securing such indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the Debt Commitment Letter applicable payoff letter at or substantially concurrently with the Closing, be released and terminated, provided, that Parent shall provide all funds required to effect all such repayments at or substantially concurrently with the Closing.
(f) From and after the date of this Agreement, and through the earlier of the Closing and the Fee Letter (date on which this Agreement is terminated in accordance with Article VIII, the Partnership shall, and the Partnership shall cause each of its Included Subsidiaries, and shall use commercially reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to cause their Representatives (including their auditors) to, use commercially reasonable efforts to provide all customary cooperation (including providing reasonably available financial and other information regarding the Included Subsidiaries for use in marketing and offering documents and assisting in the preparation of pro forma financial statements) as reasonably requested by Parent to assist Parent in (i) negotiate and enter into definitive agreements with respect to the Financing consistent with arrangement of any bank debt financing or any capital markets debt financing for the terms and conditions set forth in purposes of financing the Debt Commitment Letter and payment of the Fee Letter Cash Consideration and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are any other amounts required to be satisfied by Purchaser. Purchaser shall comply paid in connection with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of such transactions, any repayment of refinancing of debt contemplated by this Agreement or required in connection with the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Lettertransactions contemplated by this Agreement; provided, however, that Purchaser may terminate (x) no obligation or liability of the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative Included Subsidiaries under such bank debt financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative capital markets debt financing shall be on terms that are no less favorable effective prior to the interests of Purchaser than the terms contained in the Debt Commitment Letter Closing and the Fee Letter and (y) nothing herein shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions require such cooperation to the consummation of such alternative financing that are not substantially extent it would interfere unreasonably with the same as the conditions to the Financing set forth in the Debt Commitment Letter business or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as operation of the date hereofPartnership and its Included Subsidiaries.
(bg) Prior to the Closing, and, with respect to clause (iv) Notwithstanding any other provision of this Section 6.16(b)Agreement, prior to Parent shall indemnify and after hold harmless the Closing, Seller shall, Partnership and shall cause the other members each of the Seller Group and its Subsidiaries and their respective officersRepresentatives from and against any and all liabilities, employees and advisors losses, damages, claims, costs, expenses (including legal counsel reasonable attorneys’ fees) interest, awards, judgments and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser penalties suffered or incurred in connection with any and all of the Financing matters contemplated by this Section 6.19 (other than arising from a material misstatement or any Alternative Financingomission on the part of the Partnership or its Subsidiaries), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of whether or not the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities transactions contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such informationAgreement are consummated or this Agreement is terminated. Parent shall, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested promptly upon request by the relevant financing sources; and
(vii) otherwise reasonably cooperate with Partnership, reimburse the marketing efforts of Purchaser and its financing sources Partnership for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for all reasonable out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Partnership or its Subsidiaries in connection with this Section 6.19, whether or not the Financing transactions contemplated by this Agreement are consummated or this Agreement is terminated.
(h) Parent shall provide the Partnership with true and correct copies of any Alternative Financing, including such costs incurred material documents in connection with compliance any consent solicitation, tender offer, bank debt financing or capital markets debt financing proposed or entered into for the purposes of financing the payment of the Cash Consideration. As and when requested by the Partnership, Parent shall keep the Partnership reasonably informed of any material developments with Section 6.14. Purchaser shall indemnify and hold harmless Sellerrespect to any such transaction (including by providing copies to the Partnership of any amendments or supplements to, or replacements of, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them material documents in connection with any such transaction) until the arrangement first to occur of the Financing Closing Date and the termination of this Agreement in accordance with its terms.
(i) The Parent Entities acknowledge and agree that obtaining any consent solicitation, tender offer, bank debt financing or capital markets debt financing is not a condition to their obligations to effect the Closing and the Mergers. For the avoidance of doubt, if any Alternative Financing) financing, has not been obtained, the Parent Entities shall each continue to be obligated, subject to satisfaction or waiver of the conditions set forth in Article II, to consummate the Mergers and any information utilized in connection therewiththe other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (CVR Partners, Lp), Merger Agreement
Financing Cooperation. (a) Purchaser The Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to consummate cause its Representatives to, in each case at Parent’s sole expense and subject to the Financing on the terms and conditions limitations set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained thereinSection 5.7(b), including using provide to Parent and Merger Sub with reasonable best efforts to (i) negotiate cooperation requested by Parent and enter into definitive agreements Merger Sub that is reasonably necessary in connection with respect the potential financing pursuant to the Financing consistent Commitment, including reasonably promptly following Parent’s request, furnishing Parent and its potential providers of financing with financial and other information reasonably required in connection with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions potential financing pursuant to the Financing set forth Commitments that is available to or readily obtainable by the Company and opening bank accounts in such definitive agreements commercial banks that are providers of the financing pursuant to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter Financing Commitments and the Fee Letter. Purchaser deposit cash amounts therein; provided that nothing herein shall give Seller prompt notice of require the Company to execute any material breach by any party documents, certificates, mortgages or instruments pursuant to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing Finanicing Commitments that are not substantially reasonable and customary to transactions similar to the same as transactions contemplated under this Agreement and/or that shall become effective prior to the conditions Effective Time and provided further that the potential providers of such financing shall confirm that they shall have no claims against the directors and officers of the Company in office prior to the Effective Time in connection with any acts or omissions in connection with the provision of financing pursuant to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereofCommitments.
(b) Prior to Notwithstanding the Closing, and, with respect to clause (iv) requirements of this Section 6.16(b5.7(a), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees nothing herein shall require cooperation contemplated thereby to the extent it would interfere with the business or operations of the Business to participate in a reasonable number of meetingsCompany or its Subsidiaries, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with neither the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for Company nor any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group its Subsidiaries shall be required to pay any commitment fee or other fee, fee or any payment whatsoever or to incur any other material liabilityliability whatsoever with respect to the financing prior to the Effective Time, and (iii) nothing herein shall require cooperation or assistance from a Company director, officer or employee to the extent such Company director, officer or employee may incur any personal financial liability by providing such cooperation or assistance that will not be immediately repaid or reimbursed in connection with this Section 6.16, full by the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewithParent.
Appears in 2 contracts
Sources: Merger Agreement (Lumenis LTD), Merger Agreement (Lumenis LTD)
Financing Cooperation. (a) Purchaser During the Interim Period, the Company shall, and shall cause its Subsidiaries to, and shall cause its and their Representatives to, provide all cooperation reasonably requested by Parent in connection with financing arrangements (including assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of the Company Debt Agreements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Mergers or the other transactions contemplated hereby, including timely taking all corporate action reasonably necessary to authorize the execution and delivery of any documents to be entered into prior to Closing in respect of the Company Debt Agreements and delivering all officer’s certificates and legal opinions required to be delivered in connection thereof; provided that any arrangements, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations, prepayments or other transactions or documents entered into pursuant to this Section 7.20(a) shall be effective at or immediately prior to the Partnership Merger Effective Time (other than any notices required to be given in advance of such time in order for any such financing arrangements or documents to be effective at or immediately prior to the Partnership Merger Effective Time).
(b) During the Interim Period, Parent or one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Company Notes Indentures for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Company Notes Indentures for securities issued by the Partnership or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Company Notes Indentures regarding certain proposed amendments thereto (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Note Offers and Consent Solicitations”); provided that any such notice or offer shall expressly reflect that, and it shall be the case that, the closing of any such transaction shall not be consummated until the Closing and such transaction shall be funded using consideration provided by Parent or any of its Subsidiaries (or by the Company or any of the Company Subsidiaries if the payment thereof is to be made at or after the Closing). Any Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Parent and which are permitted by the terms of the applicable Company Notes Indenture and applicable Laws, including SEC rules and regulations. Parent shall consult with the Company regarding the material terms and conditions of any Note Offers and Consent Solicitations, including the timing and commencement of any Note Offers and Consent Solicitations and any tender deadlines. Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by Parent in the applicable Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Note Offers and Consent Solicitations to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or input provided by the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, the Company shall execute a supplemental indenture to each of the Company Notes Indentures in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent; provided that the amendments effected by such supplemental indentures shall not become operative until the Closing. During the Interim Period, at Parent’s sole expense, the Company shall and shall cause its Subsidiaries to, and shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) Representatives to, provide to Purchaser all cooperation, on a timely basis, as cooperation reasonably requested by Purchaser Parent to assist Parent in connection with the Financing any Note Offers and Consent Solicitations (or any Alternative Financing), which cooperation shall include including using commercially reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business Company’s independent accountants to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including provide customary consents of accountants for use of their reports in any materials relating to the Financing or extent required in connection with any Alternative Financing, the “Required Information”Note Offers and Consent Solicitations); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, provided that neither Seller the Company nor any other member of counsel for the Seller Group Company shall be required to pay furnish any commitment certificates, legal opinions or negative assurance letters in connection with any Note Offers and Consent Solicitations other fee, or incur any other material liabilitythan, in connection with this Section 6.16the execution of (i) any supplemental indenture relating to the Consent Solicitations, with respect to which the Financing Company shall (x) deliver customary officers’ certificates and (y) customary legal opinions to the trustee under the applicable Company Notes Indenture in the form required by the applicable Company Notes Indenture or (ii) any Alternative Financingdealer manager agreement or other similar agreement, with respect to which the Company shall deliver customary legal opinions to the dealer manager or other similar agent in the form required by the applicable dealer manager agreement, but only if such opinion is required to be delivered at or prior to Closing, in each case, to the extent such certificates and opinions would not conflict with applicable Laws. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Note Offers and Consent Solicitations will be selected and retained by Parent. If, at any time prior to the Financing completion of the Note Offers and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless SellerConsent Solicitations, the Company or any of its Subsidiaries, on the one hand, or Parent or any of its Subsidiaries, on the other members hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use commercially reasonable efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with notes outstanding under the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewithCompany Notes Indentures.
Appears in 2 contracts
Sources: Merger Agreement (Prologis, L.P.), Merger Agreement (DUKE REALTY LTD PARTNERSHIP/)
Financing Cooperation. (a) Purchaser From the Agreement Date to the earlier of the Closing Date and the date this Agreement is validly terminated in accordance with its terms, the Company shall use commercially reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shallefforts, and shall cause the each other members of the Seller Group Acquired Company and its and their respective officersRepresentatives to use their commercially reasonable efforts, employees to provide Parent and advisors (including legal counsel and accountants) to, provide to Purchaser with all cooperation, on a timely basis, as cooperation reasonably requested by Parent or Purchaser to assist Parent or Purchaser to consummate the Debt Financing on or prior to the Closing Date or as is otherwise customary and reasonably requested in writing by Parent or Purchaser in connection with the Debt Financing in each case, to the extent such cooperation is necessary and customary in connection with debt financings similar to the debt financing for the transactions contemplated by this agreement (or any Alternative the “Debt Financing)”) and at Parent’s and/or Purchaser’s sole cost and expense, which cooperation shall include including using commercially reasonable best efforts to timelyto:
(i) cause senior management and other appropriate employees subject to the terms of the Business Non-Disclosure Agreement, deliver to Parent and Purchaser the Financing Information (provided that (A) Parent and Purchaser shall be responsible for the preparation of such pro forma financial statements and any pro forma adjustments giving effect to the transactions contemplated herein and (B) Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records);
(ii) participate in and cause the Company’s management team, with appropriate seniority and expertise, including senior officers, to participate in a reasonable and customary number of meetings, presentations, road shows, drafting sessions and due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with to the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents extent reasonably required in connection with the Debt Financing on reasonable advance written notice and at mutually agreeable times (which participation shall be limited to teleconference or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessionsvirtual meeting platforms);
(iii) furnish no later than four (4) Business Days prior to the Closing Date all documentation and other information that is reasonably requested by Parent or Purchaser no later than nine (9) days prior to the Closing Date that is required by regulatory authorities in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitionsUSA PATRIOT Act, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”)Acquired Companies; provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;and
(iv) assist reasonably assisting Parent and Purchaser in obtaining accountants’ comfort letters connection with the preparation of any pledge and auditor’s reports in respect of audited financials security documents and other definitive financing documents (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financingschedules thereto) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by Parent, Purchaser or the relevant financing sources; andDebt Financing Sources and otherwise reasonably cooperating with Parent and Purchaser in facilitating the pledging of collateral and the granting of security interests required by the Debt Commitment Letters.
(b) Nothing in this Section 7.14 will require the Company or any of its Subsidiaries to (i) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time, (ii) enter into any agreement, document or instrument that would be effective prior to the Effective Time or that is not contingent on the occurrence of the Effective Time, (iii) give any indemnities that are effective prior to the Effective Time, (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the ordinary conduct of the business of the Company and its Subsidiaries or would require an action that is not within the control of the Company using commercially reasonable efforts, (v) take any action or fail to take any action in a manner that would reasonably be expected to conflict with or violate applicable Law or any Contract, (vi) requires the provision of access to or disclose information that any Acquired Company determines in good faith could jeopardize any attorney client privilege of, or conflict with any confidentiality obligations binding on any Acquired Company or any of their respective Affiliates, (vii) otherwise reasonably cooperate with requires the marketing efforts taking of Purchaser and its financing sources for any action that could subject any director, officer, employee, agent, manager, consultant, advisor or other representative of the Acquired Companies or any of their Affiliates to any actual or potential personal liability, (viii) requires the Financing delivery of any financial or other information that is not currently readily available or prepared in the ordinary course of business of the Acquired Companies and at the time requested by Parent or (ix) causes any condition to Closing to fail to be satisfied or would reasonably be expected to conflict with, violate or result in a breach of or default under any Contract (including this Agreement) or any Alternative FinancingOrganizational Document of any Acquired Company; provided, however, that in no event shall anything in this Agreement require members of the board of managers, board of directors or similar governing body of any Acquired Company who will not continue in such capacities in respect of the Surviving Company as of the Closing Date to execute any consent or adopt resolutions, in each case, approving or otherwise relating to the Debt Financing. In addition, no action, liability or obligation of the Company, any of its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing will be effective until the Effective Time, and neither Seller the Company nor any other member of the Seller Group shall its Subsidiaries will be required to pay take any commitment action pursuant to any certificate, agreement, arrangement, document or other feeinstrument that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Parent shall, or incur any other material liability, in connection with this Section 6.16, promptly upon request by the Financing or any Alternative Financing. Purchaser shall Company (i) reimburse Seller the Company for all reasonable and documented out-of-pocket costs (such as reasonable and documented travel costs and attorneys’ fees) actually incurred by the Acquired Companies or any of its or their respective Representatives in connection with the Financing its cooperation pursuant to this Section 7.14; and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall (ii) indemnify and hold harmless Seller, the other members of the Seller Group Acquired Companies and its and their respective directors, officers, employees and representatives Representatives from and against any and all Losses losses suffered or incurred by any of them in connection with the arrangement of the Financing (or Debt Financing, any Alternative Financing) action taken by them pursuant to this Section 7.14, and any information utilized used in connection therewith; in each case, except to the extent suffered or incurred as a result of the bad faith, gross negligence, willful misconduct, or fraud by any Acquired Company or their respective Representatives. This Section 7.14(b) is intended to be for the benefit of each of the Acquired Companies and their respective Affiliates and may be enforced by any such Person as if such Person were a party to this Agreement.
(c) The Company hereby consents to the reasonable use of the Acquired Companies’ logos and other trademarks in connection with the Debt Financing in a manner usual and customary for debt financings of a type similar to the Debt Financing; provided, that such logos and trademarks are used solely in a manner that is not intended to, and is not reasonably likely to, harm or disparage the Acquired Companies or their reputation.
(d) All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 7.14 will be kept confidential in accordance with the Non-Disclosure Agreement, except that Parent and Purchaser will be permitted to disclose such information to any Debt Financing Source or prospective Debt Financing Source and other financial institutions that are or may become parties to the Debt Financing (and, in each case, to their respective Representatives) so long as such Persons: (i) agree to be bound by the Confidentiality Agreement as if parties thereto, or (ii) are otherwise subject to other customary confidentiality arrangements, including “click through” confidentiality agreements and confidentiality provisions contained in customary bank books and offering memoranda.
(e) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 7.14 represent the sole obligation of the Acquired Companies and their respective Affiliates with respect to cooperation in connection with the Debt Financing.
(f) None of the Acquired Companies, their respective Affiliates nor any of their respective Representatives shall have no liability whatsoever to Parent in respect of any financial information or data or other information (including any financial statements or other information) provided pursuant to this Section 7.14.
(g) Notwithstanding this Section 7.14 or anything else in this Agreement, Parent and Purchaser affirm that it is not a condition to the Closing or to any of its other obligations under this Agreement that Parent, Purchaser or any of their respective Affiliates obtain financing for or related to any of the transactions contemplated by this Agreement (including all or any portion of the Debt Financing).
Appears in 2 contracts
Sources: Merger Agreement (Biodelivery Sciences International Inc), Merger Agreement (Collegium Pharmaceutical, Inc)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing Prior to the utilization of any “market flex” provisions contained therein)Effective Time, including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligationsCompany shall, and shall cause the Company Subsidiaries to, and shall use its reasonable best efforts to enforce cause its rightsand their Representatives to, under provide all customary cooperation and all customary financial information, in each case, that is reasonably requested by Parent or Merger Sub in connection with the Debt Commitment Letter Financing, including furnishing to Parent (i) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date, in each case, to the extent it would not unreasonably interfere with the Company’s and the Fee LetterCompany Subsidiaries’ business or operations. Purchaser shall give Seller prompt notice of any material breach by any party Notwithstanding anything to the Debt Commitment Letter contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of which Purchaser has become aware, the Company or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions Company Subsidiary to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination ofreasonably be expected to result in such Person incurring any personal liability, the Debt Commitment Letter; provided(III) be required to waive or amend any terms of this Agreement, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable (IV) be required to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or provide any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” information that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof.
hereof or is legally privileged (b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in no a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing, in each case, that would be effective prior to the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any “Management’s Discussion and Analysis”financing that Parent, “Compensation Discussion and Analysis” or similar disclosure related Merger Sub and/or other Subsidiaries of Parent elects to obtain for the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect purpose of audited financials (including consents of accountants for use of their reposts in any materials relating to financing the Financing transactions contemplated hereby or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser transaction undertaken in satisfying the conditions connection herewith, whether or not pursuant to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewith.
Appears in 2 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Ca, Inc.)
Financing Cooperation. (a) Purchaser During the Interim Period, the Company shall, and shall cause its Subsidiaries to, and shall cause its and their Representatives to, provide all cooperation reasonably requested by Parent in connection with financing arrangements (including assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of the Company Debt Agreements) as Parent may reasonably determine necessary or advisable in connection with the completion of the Mergers or the other transactions contemplated hereby, including timely taking all corporate action reasonably necessary to authorize the execution and delivery of any documents to be entered into prior to Closing in respect of the Company Debt Agreements and delivering all officer’s certificates and legal opinions required to be delivered in connection thereof; provided that any arrangements, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations, prepayments or other transactions or documents entered into pursuant to this Section 7.19(a) shall be effective at or immediately prior to the Partnership Merger Effective Time (other than any notices required to be given in advance of such time in order for any such financing arrangements or documents to be effective at or immediately prior to the Partnership Merger Effective Time).
(b) During the Interim Period, Parent or one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers to purchase any or all of the outstanding debt issued under the Company Notes Indentures and the Company Private Placement Notes for cash (the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the Company Notes Indentures and the Company Private Placement Notes for securities issued by the Partnership or any of its Affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the Company Notes Indentures and the Company Private Placement Notes regarding certain proposed amendments thereto or certain transactions described therein (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Note Offers and Consent Solicitations”); provided that any such notice or offer shall expressly reflect that, and it shall be the case that, the closing of any such transaction shall not be consummated until the Closing and such transaction shall be funded using consideration provided by Parent or any of its Subsidiaries (or by the Company or any of the Company Subsidiaries if the payment thereof is to be made at or after the Closing). Any Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Parent and which are permitted by the terms of the applicable Company Notes Indenture and the Company Private Placement Notes and applicable Laws, including SEC rules and regulations. Parent shall consult with the Company regarding the material terms and conditions of any Note Offers and Consent Solicitations, including the timing and commencement of any Note Offers and Consent Solicitations and any tender deadlines. Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by Parent in the applicable Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Note Offers and Consent Solicitations to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or input provided by the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, the Company shall execute a supplemental indenture to each of the Company Notes Indentures or amendment to each of the Company Private Placement Notes, as applicable, in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent; provided that the amendments effected by such supplemental indentures and amendments shall not become operative until the Closing. During the Interim Period, at Parent’s sole expense, the Company shall and shall cause its Subsidiaries to, and shall use reasonable best efforts to consummate cause its and their Representatives to, provide all cooperation reasonably requested by Parent to assist Parent in connection with any Note Offers and Consent Solicitations (including using commercially reasonable efforts to cause the Financing Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Note Offers and Consent Solicitations); provided that neither the Company nor counsel for the Company shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Note Offers and Consent Solicitations other than, in connection with the execution of (i) any supplemental indenture or amendment relating to the Consent Solicitations, with respect to which the Company shall (x) deliver customary officers’ certificates and (y) customary legal opinions to the trustee under the applicable Company Notes Indenture in the form required by the applicable Company Notes Indenture or to the noteholders of the applicable Company Private Placement Notes in the form required by the applicable Company Private Placement Notes or (ii) any dealer manager agreement or other similar agreement, with respect to which the Company shall deliver customary legal opinions to the dealer manager or other similar agent in the form required by the applicable dealer manager agreement, but only if such opinion is required to be delivered at or prior to Closing, in each case, to the extent such certificates and opinions would not conflict with applicable Laws. The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Note Offers and Consent Solicitations will be selected and retained by Parent. If, at any time prior to the completion of the Note Offers and Consent Solicitations, the Company or any of its Subsidiaries, on the terms and conditions one hand, or Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Commitment Letter Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use commercially reasonable efforts to promptly notify the other Party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders of the notes outstanding under the Company Notes Indentures and the Fee Letter Company Private Placement Notes.
(which reasonable best efforts c) Nothing in this Section 7.19 shall include agreeing to require the utilization of Company or any “market flex” provisions contained therein), including using reasonable best efforts to Company Subsidiary: (i) negotiate and enter into definitive agreements to pay any fee that is not reimbursed by Parent in connection with respect to any of the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and activities contemplated by Section 7.19; (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit unreasonably interfere with the termination ongoing operations of the Company or any Company Subsidiary in any material respect; (iii) to take any action that will conflict with or violate its respective organizational documents or any applicable Laws or result in the contravention of, or would reasonably be expected to result in a material violation of, or material default under, any contract to which the Debt Commitment LetterCompany or any Company Subsidiary is a party or the Company Notes Indentures and the Company Private Placement Notes; provided(iv) to prepare separate financial statements for any Company Subsidiary or change any fiscal period, howeveror (v) to enter into any document, agreement or other instrument that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable will be effective prior to the interests of Seller Closing (other than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereundercustomary authorization and reliance letters). In the event that all or any portion No personal liability arising out of the Financing becomes unavailable Note Offers and Consent Solicitations shall be imposed on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letterany officers, regardless directors or other Representatives of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereofCompany.
(bd) Prior Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses paid to third parties (including advisor’s fees and expenses) incurred by the Closing, and, Company or any Company Subsidiary in connection with respect the cooperation provided or other action taken by Company or any Company Subsidiary pursuant to clause (iv) of this Section 6.16(b)7.19 and indemnify and hold harmless the Company, prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its Company Subsidiaries and their respective officers, employees directors and advisors other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (including legal counsel and accountantscollectively, “Losses”) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested suffered or incurred by Purchaser them in connection with the Financing (any such financing transaction or Note Offers and Consent Solicitations, any information utilized in connection therewith or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of action taken by the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing Company or any Alternative Financing, including Company Subsidiary pursuant to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”)Section 7.19; provided, however, that the Required Information foregoing indemnity shall in no event include not apply with respect to any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” Losses resulting from the gross negligence or similar disclosure related to Willful Breach of the Business;Company or any Company Subsidiaries under this Agreement.
(ive) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to All non-public or other confidential information provided by the Financing Company or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser of its Representatives pursuant to this Agreement shall be kept confidential in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate accordance with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative FinancingConfidentiality Agreement; provided, however, that neither Seller nor any other member of the Seller Group Parent shall be required permitted to pay disclose such information to any commitment third party financing sources or prospective third party financing sources and other fee, or incur financial institutions and investors (including the parties to and holders of notes under the Company Notes Indentures and Company Private Placement Notes) and to their respective counsel and auditors subject to customary confidentiality arrangements for use by any other material liability, of them of such information in connection with providing the financing contemplated by this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred 7.19 in connection with the Financing Mergers.
(f) Anything to the contrary in this Agreement notwithstanding, (i) the Parties acknowledge and any Alternative Financing, including such costs incurred agree that the provisions contained in connection with compliance with this Section 6.14. Purchaser shall indemnify and hold harmless Seller, 7.19 represent the other members sole obligation of the Seller Group Company, it Subsidiaries and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them Representatives with respect to cooperation in connection with the arrangement of any financing transaction or Note Offers and Consent Solicitations with respect to the Financing transactions contemplated by this Agreement and no other provision of this Agreement (including the exhibits and schedules hereto) shall be deemed to expand or modify such obligation; (ii) the Company’s breach of any Alternative Financingof the covenants required to be performed by it under this Section 7.19 (other than a Willful Breach of such covenants) shall not be considered in determining the satisfaction of the condition set forth in Section 8.2(b); and (iii) the consummation of any information utilized in connection therewithfinancing transaction or Note Offers and Consent Solicitations contemplated by this Section 7.19 is not a condition to any Party’s obligation to consummate the Mergers.
Appears in 2 contracts
Sources: Merger Agreement (Extra Space Storage Inc.), Merger Agreement (Life Storage Lp)
Financing Cooperation. (ai) Purchaser During the period from the date of this Agreement to the Effective Time, the Company shall, and shall use reasonable best efforts cause its subsidiaries and its and their respective officers, directors, employees and Representatives to, cooperate in good faith to consummate implement any necessary, appropriate or desirable arrangements in connection with the Financing on Company’s and its subsidiaries credit facilities, indentures or other documents governing or relating to indebtedness with respect to any financing matters related to the Transactions, including, without limitation, the repayment of indebtedness under, and termination of, the Company’s credit facilities upon Closing and any Debt Offers, or similar transactions in connection with the Company’s debt securities, in each case, so long as the effectiveness of such arrangements is conditioned upon the consummation of the Merger.
(ii) In furtherance of the foregoing, Parent (or a subsidiary of Parent) will be permitted, in consultation with the Company, to commence and conduct offers to purchase or exchange, and conduct consent solicitations with respect to, any or all of the outstanding series of senior notes of the Company (the “Company Notes”), the consummation or completion of which shall be conditioned upon the Closing and which offers to purchase or exchange or consent solicitations shall have such other terms and conditions, including pricing terms and amendments to the terms and conditions set forth provisions of the applicable indenture, as are specified, from time to time, by Parent in consultation with the Company (each, a “Debt Offer” and collectively, the “Debt Offers”) and which are permitted by the terms of such Company Notes, the applicable indentures and applicable Law, including the rules and regulations of the SEC. Parent (or a subsidiary of Parent) shall not be permitted to commence any Debt Offer unless Parent shall have provided the Company with the necessary offer to purchase, consent solicitation statement, letter of transmittal or press release, if any, in connection with the Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel to review and comment on such Debt Offer Documents (which comments shall be considered in good faith by Parent). Subject to the receipt of the requisite holder consents, in connection with any or all of the consent solicitations, the Company shall execute a supplemental indenture to the Company’s indentures in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Commitment Letter Offer documents in a form as reasonably requested by Parent; provided that the amendments effected by such supplemental indentures shall be conditioned upon, and shall not become operative until, the Fee Letter (which reasonable best efforts Closing. In connection with any such Debt Offers, the Company shall include agreeing to the utilization of any “market flex” provisions contained therein), including using use reasonable best efforts to (i) negotiate deliver and enter into definitive agreements with respect to cause counsel for the Company to deliver, customary legal opinions, to the Financing consistent extent such opinions would not conflict with Applicable Law and would be accurate in light of the terms facts and conditions set forth in circumstances at the Debt Commitment Letter and the Fee Letter time delivered and (ii) satisfy on a timely basis (or obtain cause the waiver of) all conditions Company’s independent accountants to provide customary consents for use of their reports to the Financing set forth extent required in such definitive agreements that are to be satisfied by Purchaserconnection with any Debt Offers. Purchaser shall comply The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter Offers will be selected by Parent after consultation with the Company and their fees and out-of-pocket expenses will be paid directly by Parent.
(iii) The Company acknowledges and agrees that it may be necessary for Parent and its subsidiaries to enter into financing transactions (including, without limitation, the Fee Letter. Purchaser shall give Seller prompt notice raising of any material breach by any party new financing, the refinancing of existing indebtedness, the retirement, prepayment or redemption of existing indebtedness, producing amendments, amendment and restatements, modifications, waivers or consents in relating to existing indebtedness and/or launch and consummating the Debt Commitment Letter of which Purchaser has become awareOffers) (any such transaction, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the a “Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunderTransaction”). In connection with any Financing Transaction, the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller Company shall, and shall cause the other members of the Seller Group and its subsidiaries and their respective officers, directors, employees and advisors (including legal counsel and accountants) Representatives to, cooperate and use its and their reasonable best efforts to provide to Purchaser all cooperationsuch information and documentation as may be necessary or reasonably desirable in connection with the structuring, on a timely basismarketing and execution of any Financing Transaction, as reasonably requested by Purchaser including (A) participating in meetings and due diligence sessions and rating agency presentations in connection with the Financing Transaction and preparing materials in connection therewith, (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(iB) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist assisting with the preparation of materials any portion of the disclosure in relation to the Financing Transaction that relates to the Merger or the Transactions (including business projections any historical and similar materialspro forma financial information and operational data), (C) for rating agencyexecuting and delivering any pledge and security document, lender and investor presentationsguarantees, offering indentures, other definitive financing documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
certificates or documents and legal opinions as may be reasonably requested (iii) furnish Purchaser and provided such documents will not take effect until the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iiiEffective Time) and (D) delivering, or procuring the other Required Information in a current report filed with the SEC) (delivery of, such information, together with the Audited Business Financial Statementscertificates, the Quarterly Financial Statementsauthorization letters, the Monthly Financial Reportscomfort letters, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort representation letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested necessary or desirable (including, without limitation, any investment or commercial banks appointed in any capacity with respect to any Financing Transaction). Parent shall, promptly upon request by the relevant financing sources; and
Company, reimburse the Company for all reasonable costs and expenses (vii) otherwise reasonably cooperate with including reasonable attorneys’ fees, but excluding the marketing efforts of Purchaser and its financing sources for any costs of the Financing or Company’s preparation of its annual and quarterly financial statements and any Alternative Financing; providedamount in respect of such costs and expenses for which the Company (or, howeverif relevant, that neither Seller nor any other member of a group for VAT purposes of which it is a member) is entitled to credit as input tax) incurred by the Seller Group shall be required to pay any commitment Company or other fee, its subsidiaries or incur any other material liability, their respective representatives in connection with this Section 6.165.1(d) (including such Financing Transaction).
(iv) Notwithstanding anything to the contrary in this Section 5.1(d), the Company shall not be required to (x) enter into any Financing Transaction prior to the Effective Time that is not conditioned upon the consummation of the Merger or (y) disclose any Alternative Financing. Purchaser information pursuant to this Section 5.1(d) to the extent that (A) in the reasonable good faith judgment of the Company, any Applicable Law requires the Company or its subsidiaries to restrict or prohibit access to any such information, (B) in the reasonable good faith judgment of the Company, the information is subject to confidentiality obligations to a third party or (C) disclosure of any such information or document would result in the loss of attorney-client privilege; provided, further, that with respect to clauses (A) through (C) of this Section 5.1(d)(iv), the Company shall reimburse Seller for use its commercially reasonable out-of-pocket costs incurred in connection with efforts to (1) obtain the Financing required consent of any third party necessary to provide such disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to the Company and any Alternative Financing, including Parent and (3) utilize the procedures of a joint defense agreement or implement such costs incurred in connection with compliance with Section 6.14. Purchaser other techniques if the parties determine that doing so would reasonably permit the disclosure of such information without violating Applicable Law or jeopardizing such privilege.
(v) Parent shall indemnify and hold harmless Sellerthe Company, the other members of the Seller Group its subsidiaries and their respective officers, directors, officers, employees and representatives Representatives from and against any and all Losses losses, damages, claims, costs or expenses suffered or incurred by any of them of any type (other than to the extent resulting from information provided to Parent in writing by the Company or its subsidiaries) in connection with the arrangement Company’s obligations under this Section 5.1(d), except in the event that such loss, damage, claim, cost or expense arises out of or results from the Financing (gross negligence, willful misconduct or any Alternative Financing) and any information utilized bad faith by the Company or its subsidiaries in connection therewithfulfilling their obligations pursuant to this Section 5.1(d).
Appears in 2 contracts
Sources: Merger Agreement (IHS Markit Ltd.), Merger Agreement (S&P Global Inc.)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller The Company shall, and shall cause the other members Subsidiaries of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) Company to, (i) provide commercially reasonable assistance with the preparation of and any discussions regarding the business, financial statements, and management discussion and analysis of the Company and the Subsidiaries of the Company, all for use in connection with any debt or equity financing to Purchaser all cooperationbe obtained by Parent or any Subsidiary of the Parent, on a timely basisincluding any registration statement filed with the SEC in anticipation thereof (the “Financing”, which term shall include, without limitation, the Transaction Financing) where Parent determines that the inclusion of such information is required or desirable, and (ii) request that its independent accountants provide customary and reasonable assistance to Parent or any Subsidiary of Parent, as reasonably requested by Purchaser applicable, in connection with providing customary comfort letters in connection with the Financing Financing; provided, further, that nothing in this Agreement shall require the Company to cause the delivery of (A) legal opinions or reliance letters or any Alternative certificate as to solvency or any other certificate necessary for the Financing, other than as allowed by the preceding clause (ii), which cooperation shall include using reasonable best efforts (B) any audited financial information or any financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act or any financial information in a form not customarily prepared by the Company with respect to timely:any period or (C) any financial information with respect to a month or fiscal period that has not yet ended or has ended less than forty-five (45) days prior to the date of such request.
(b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 5.16): (i) cause senior management and nothing in this Agreement (including this Section 5.16) shall require any such cooperation to the extent that it would (A) require the Company to pay any commitment or other appropriate employees fees, reimburse any expenses or otherwise incur any liabilities or give any indemnities prior to the Closing, (B) unreasonably interfere with the ongoing business or operations of the Business Company or any of the Subsidiaries of the Company, (C) require the Company or any of the Subsidiaries of the Company to participate in a reasonable number enter into or approve any agreement or other documentation effective prior to the Closing or agree to any change or modification of meetingsany existing agreement or other documentation that would be effective prior to the Closing, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(iiD) assist with require the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with Company to provide pro forma financial statements or pro forma adjustments reflecting the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information description of the type required under the Securities Act and all or any component of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser the Company shall have use reasonable best efforts to assist in preparation of pro forma financial adjustments to the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials extent otherwise relating to the Financing Company and required by the Financing), (E) require the Company or any Alternative Financing, the “Required Information”); provided, however, Subsidiaries of the Company to provide pro forma financial statements or pro forma adjustments reflecting transactions contemplated or required hereunder (it being understood that the Required Information Company shall use reasonable best efforts to assist in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related preparation of pro forma financial adjustments to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials extent otherwise relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain Company and deliver at the Closing other customary certificates or other documents as may be reasonably requested required by the relevant financing sources; and
Financing), or (viiF) otherwise reasonably cooperate with require the marketing efforts of Purchaser and its financing sources for Company, any of the Financing Subsidiaries of the Company or any Alternative of their respective boards of directors (or equivalent bodies) to approve or authorize the Financing; provided, howeverand (ii) no action, that neither Seller nor liability or obligation (including any other member of the Seller Group shall be required obligation to pay any commitment or other fee, fees or incur reimburse any other material liability, in connection with this Section 6.16expenses) of the Company, the Financing Subsidiaries of the Company or any Alternative Financing. Purchaser of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing.
(c) Parent shall (i) promptly reimburse Seller the Company for all reasonable and out-of-pocket costs or expenses (including reasonable and documented costs and expenses of counsel and accountants) incurred by the Company, the Subsidiaries of the Company and any of its or their Representatives in connection with any cooperation provided for in this Section 5.16 and (ii) indemnify and hold harmless the Company, the Subsidiaries of the Company or any of its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including fees and expenses of counsel and accountants) or settlement payment incurred as a result of, or in connection with, any cooperation provided for in this Section 5.16 or the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized used in connection therewith, unless the Company acted in bad faith or with gross negligence and other than in the case of fraud.
(d) Without limiting the generality of the foregoing, promptly following Parent’s request, the Company shall deliver to each of the lenders under the Company’s and its Subsidiaries’ existing short and long-term Indebtedness (the “Existing Loan Lenders”) a notice (an “Existing Loan Notice”) prepared by Parent, in form and substance reasonably acceptable to the Company, notifying each of the Existing Loan Lenders of this Agreement and the contemplated Merger. At Parent’s election, the Existing Loan Notice with respect to one or more of the Existing Loan Documents may include a request for a consent, in form and substance reasonably acceptable to the Company (an “Existing Loan Consent”), to (1) the consummation of the Merger and the other transactions contemplated by this Agreement, and (2) certain modifications of (or waivers under or other changes to) the Existing Loan Documents; provided, that no such modifications, waivers or changes shall be effective prior to the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Questar Corp), Merger Agreement (Dominion Resources Inc /Va/)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller The Company shall, and shall cause the other members of the Seller Group its Subsidiaries to, and shall cause its and their respective officers, employees and advisors (including legal counsel and accountants) Representatives to, provide to Purchaser all cooperation, on a timely basis, as cooperation reasonably requested by Purchaser Parent in connection with financing arrangements (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the Financing (completion of the Merger or any Alternative Financing), which the other transactions contemplated hereby. Such cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate participating in a reasonable number of meetings, presentations, road shows, presentations and due diligence sessions and sessions in connection with rating agencies on reasonable advance notice;
such financing arrangements, (ii) assist providing reasonable and timely assistance with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials prospectuses and similar documents required in connection with such financing arrangements, (iii) as promptly as reasonably practical, and in any event at least 10 days prior to the Closing Date, furnishing Parent and any of its financing sources with (A) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income, changes in equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended March 31, 2019 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 40 days before the Closing Date and (B) in the event that the Closing Date occurs on a date that is more than 60 days following December 31, 2019, audited consolidated balance sheets and related audited consolidated statements of operations, comprehensive income (loss), changes in equity and cash flows for the fiscal year ended December 31, 2019, in each case prepared in accordance with GAAP and (iv) to the extent requested in writing at least ten (10) Business Days prior to the Closing, delivering at least three Business Days prior to the Closing all documentation and other information with respect to the Company and its Subsidiaries that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the USA PATRIOT Act. Notwithstanding the foregoing, the Company and its Subsidiaries and their respective Representatives shall not be required to enter into any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters) that will be effective prior to the Closing and nothing in this Section 5.13 shall require (x) such cooperation to the extent it would disrupt unreasonably the business or operations of the Company or any of its Subsidiaries or require any of them to take any actions that would reasonably be expected to violate applicable Law, contract or Organizational Documents, (y) the Board of Directors of the Company or the Board of Directors or similar governing body of any Subsidiary of the Company to adopt resolutions approving any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters to the extent necessary) that will be effective prior to the Closing or (z) the Company or any of its Subsidiaries to incur any liability (including due to any act or omission by the Company or any of its Subsidiaries or any of their respective Representatives) prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent. It is understood and agreed that a failure to consummate a financing of the type described in the first sentence of this Section 5.13(a) shall not, in and of itself, constitute a failure by the Company to satisfy its obligations under this Section 5.13(a).
(b) The Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to, as soon as reasonably practicable after (and not prior to) the receipt of a written request from Parent to do so, on the terms and conditions specified by Parent and in compliance with all applicable terms and conditions of the applicable Company Debt Agreement, seek an amendment or amendments to any of the Company Debt Agreements or pursue any approach chosen by Parent to the assumption, defeasance, satisfaction and discharge, constructive satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee, purchase, unwinding or other treatment of, the Company Debt Agreements and the indebtedness incurred pursuant thereto, in each case, subject to the occurrence of the Closing (any such transaction, a “Debt Transaction”). The Company shall not be required to take any action in respect of any Debt Transaction until Parent shall have provided the Company with drafts of any necessary documentation required in connection with such Debt Transaction in a form reasonably satisfactory to the Company (collectively, the “Debt Transaction Documents”) at least three (3) Business Days prior to the date of such requested action. The Company shall use commercially reasonable efforts to, and shall cause its Subsidiaries to use commercially reasonable efforts to, cause its and their respective Representatives to provide cooperation and assistance reasonably requested by Parent in connection with the Financing or Debt Transactions (including taking all corporate action reasonably necessary to authorize the execution and delivery of any Alternative Financing, including Debt Transaction Documents to cause management be entered into prior to Closing and other personnel delivering all officer’s certificates and legal opinions required to participate be delivered in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) connection therewith (such informationcorporate action, together with execution and delivery not to be unreasonably withheld, delayed or conditioned)); provided, that the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, effectiveness of any replacements or restatements thereof and supplements thereto, andsuch Debt Transaction Documents or, in the case of a notice of prepayment or redemption, such prepayment or redemption, shall be expressly conditioned on the Audited Business Financial Statements, Closing. It is understood and agreed that a failure to effectuate any Debt Transaction shall not constitute a failure by the auditors’ report thereonCompany to satisfy its obligations under this Section 5.13(b).
(c) The Company shall, and including consents shall cause its Subsidiaries to, after (and not prior to) the receipt of accountants for use a written request from Parent to do so, deliver all notices and take all other actions to facilitate the termination at the Effective Time of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports all commitments in respect of audited financials each of the Company Credit Facility and any other indebtedness of the Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date as specifically requested by Parent in writing, the repayment in full on the Closing Date of all obligations in respect of the indebtedness thereunder, and the release on the Closing Date of any Liens securing such indebtedness and guarantees in connection therewith. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use commercially reasonable efforts to deliver to Parent (including consents of accountants for use of their reposts in any materials relating i) at least 10 Business Days prior to the Financing Closing Date (or any Alternative Financing) such short period as reasonably requested agreed by Purchaser;
Parent), a draft payoff letter with respect to each of the Company Credit Facility and (v) assist Purchaser in satisfying to the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably extent requested by the relevant financing sources; and
Parent to the Company in writing) any other indebtedness (viiincluding mortgages) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing Company or any Alternative Financing; providedits Subsidiaries to be paid off, howeverdischarged and terminated on the Closing Date and (ii) at least one Business Day prior to the Closing Date, that neither Seller nor any other member an executed payoff letter with respect to each of the Seller Group shall Company Credit Facility (the “Payoff Letters”) and such other indebtedness (including mortgages) of the Company or its Subsidiaries to be required to pay any commitment or other feepaid off, or incur any other material liabilitydischarged and terminated on the Closing Date, in connection each case in form and substance customary for transactions of this type, from the Persons (or the applicable agent on behalf of the Persons) to whom such indebtedness is owed, which Payoff Letters together with this Section 6.16any related release documentation shall, among other things, (x) include the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred payoff amount (including customary per diem) and (y) provide that Liens (and guarantees), if any, granted in connection with the Financing and Company Credit Facility or any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members indebtedness of the Seller Group Company to be paid off, discharged and their respective directorsterminated on the Closing Date relating to the assets, officers, employees rights and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement properties of the Financing (Company and its Subsidiaries securing or any Alternative Financing) relating to such indebtedness, shall, upon the payment of the amount set forth in the applicable Payoff Letter at or prior to the Effective Time, be released and any information utilized in connection therewithterminated.
Appears in 1 contract
Financing Cooperation. (a) Purchaser From the date hereof until the earlier of the Closing Date and the date this Agreement is validly terminated in accordance with its terms, the Company shall use its commercially reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shallefforts, and shall cause the each other members of the Seller Group Acquired Company and its and their respective officersrepresentatives to use their respective commercially reasonable efforts, employees to provide Buyer and advisors (including legal counsel and accountants) to, provide to Purchaser Merger Sub with all cooperation, on a timely basis, as cooperation reasonably requested by Purchaser Buyer or Merger Sub to assist Buyer or Merger Sub in connection with causing the conditions in the Debt Financing (or any Alternative Agreement to be satisfied and to arrange and obtain the Debt Financing), which cooperation shall include including using commercially reasonable best efforts to timelyto:
(i) cause senior management deliver to Buyer and Merger Sub such reasonably available financial and other appropriate employees of operating information concerning the Business to participate Acquired Companies which is reasonably requested by any Debt Financing Source in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions connection with rating agencies on reasonable advance noticethe Debt Financing;
(ii) assist with furnish no later than three (3) Business Days prior to the preparation of materials Closing Date all documentation and other information that is reasonably requested by Buyer or Merger Sub no later than ten (including business projections and similar materials10) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents days prior to the Closing Date that is required by regulatory authorities in connection with the Financing or any Alternative Financingapplicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, relating to cause management and other personnel to participate in related drafting sessionsthe Acquired Companies;
(iii) furnish Purchaser facilitate the pledging of collateral and the relevant financing sources non-financial information granting of the type required under the Securities Act and of type and form customarily included security interests in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed connection with the SEC) (such informationDebt Financing, together with including, but not limited to delivery of stock certificates issued by any Acquired Company, effective no earlier than, and subject to the Audited Business Financial Statementsoccurrence of, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the BusinessClosing;
(iv) assist in obtaining accountants’ comfort letters the preparation, review and auditor’s reports in respect of audited financials negotiation of, and facilitate the execution and delivery of, one or more credit agreements, pledge and security documents, and other definitive financing documents (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financingschedules and exhibits thereto) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by B▇▇▇▇, Merger Sub, or the relevant financing sourcesDebt Financing Sources or is required by the Debt Financing Sources in connection with the Debt Financing (excluding any solvency and other closing certificates), in each case effective no earlier than, and subject to the occurrence of, the Closing;
(v) cooperate with B▇▇▇▇ in satisfying the conditions precedent set forth in the Debt Financing Agreement to the extent the satisfaction thereof requires the cooperation of and is in the control of the Acquired Companies; and
(vi) delivering notices of prepayment within the time periods required by the relevant agreements governing the Indebtedness list on Schedule 3.3 (or obtaining waivers of such notices).
(b) Nothing in this Section 8.14 will require the Acquired Companies to (i) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing Date or agree to pay any fees or reimburse any expenses prior to Closing for which it has not received prior reimbursement, (ii) enter into any definitive agreement that would be effective prior to the Closing Date or that is not contingent on the occurrence of the Closing Date, (iii) give any indemnities that are effective prior to the Closing Date, (iv) take any action that, in the good faith determination of the Company, would unreasonably and materially interfere with the ordinary conduct of the Business, (v) provide access to or disclose information which, pursuant to the advice of counsel, would result in waiving any attorney-client privilege, work-product or similar privilege, (vi) take any action which would contravene any position taken in any tax return or financial statements, (vii) otherwise reasonably cooperate with prepare any (1) pro forma financial statements or adjustments or projections or post-Closing or pro forma cost savings, capitalization and other post-Closing adjustments; (2) description of all or any portion of the marketing efforts Debt Financing, including any “description of Purchaser notes” and “plan of distribution”; (3) risk factors relating to all or any component of the Debt Financing; or (4) financial statements or other financial information not prepared in the Ordinary Course of Business, (viii) pass resolutions or consents to approve or authorize the Debt Financing or the execution and delivery of the definitive documents or Debt Financing Agreement (provided, for the avoidance of doubt, the Company will not prevent members of the board of directors and similar governing bodies from passing resolutions or consents that are effect immediately as of the Closing in their capacities as members of the board of directors and similar governing bodies immediately after giving effect to the Closing) or (ix) cause the delivery of any legal opinions or any certificates, including as to solvency of the Company or its financing sources for Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Company’s breach of any of the covenants required to be performed by it under this Section 8.14 shall not be considered in determining the satisfaction of any condition set forth in this Agreement (and the Company shall be deemed to have complied with this Section 8.14 for all purposes of this Agreement) unless (i) the Company commits a willful breach of its obligations under this Section 8.14 and (ii) the failure to obtain the Debt Financing primarily resulted from or any Alternative Financing; provided, however, was primarily caused by such willful breach. Buyer acknowledges that neither Seller nor any other member this Section 8.14 represents the sole obligation of the Seller Group shall be required Company and its Subsidiaries and Affiliates and their respective officers, board members, employees and other Representatives with respect to pay any commitment or other fee, or incur any other material liability, the cooperation in connection with the Debt Financing under this Section 6.16Agreement.
(c) Buyer shall, promptly upon request by the Financing Company (and, in any event, within 5 Business Days) following the earlier of Closing or any Alternative Financing. Purchaser shall valid termination of this Agreement: (i) reimburse Seller the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Acquired Companies or any of its or their respective representatives in connection with the Financing and any Alternative Financingits cooperation pursuant to this Section; provided, including that such costs and expenses shall not include any ordinary course amounts that would have been incurred by the Acquired Companies or their representatives regardless of the covenant set forth in connection with compliance with Section 6.14. Purchaser shall 8.14; and (ii) indemnify and hold harmless Seller, the other members of the Seller Group Acquired Companies and its and their respective directors, officers, employees and representatives from and against any and all Losses losses actually suffered or incurred by any of them in connection with any action taken by them pursuant to this Section 8.14 related to the arrangement of the Financing (or any Alternative Debt Financing) , and any information utilized used in connection therewithwith the Debt Financing; in each case, except to the extent arising, suffered or incurred as a result of Fraud, gross negligence or willful misconduct by any Acquired Company or their respective representatives.
(d) The Company hereby consents to the reasonable use of the Acquired Companies’ logos and other trademarks in connection with the Debt Financing; provided, that such logos and trademarks are used solely in a manner that is not intended to, and is not reasonably likely to, harm or disparage the Acquired Companies or their reputation.
(e) All non-public or other confidential information provided by the Acquired Companies or any of their representatives pursuant to this Section 8.14 will be kept confidential in accordance with the Confidentiality Agreement, except that Buyer and Merger Sub will be permitted to disclose such information to any Debt Financing Source or prospective Debt Financing Source and other financial institutions that are or may become parties to the Debt Financing (and, in each case, to their respective representatives) so long as such Persons: (i) agree to be bound by the Confidentiality Agreement as if parties thereto, or (ii) are otherwise subject to other customary confidentiality arrangements.
Appears in 1 contract
Financing Cooperation. (a) Purchaser shall Prior to the Closing Date, the Company will use their commercially reasonable best efforts efforts, and will cause each of its Representatives to consummate use their respective commercially reasonable efforts, in each case at Parent’s sole expense, to provide Parent with all cooperation reasonably requested by Parent that is necessary in connection with the Financing on arrangement (and consummation) of the terms and Debt Financing, including the conditions precedent set forth in the Debt Commitment Letter and including taking the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timelyfollowing actions:
(i) cause participating (including causing members of senior management and other appropriate employees of the Business Company to participate directly) in a reasonable and limited number of meetings, presentations, road showsbank meetings, drafting sessions and due diligence sessions with the Debt Financing Sources and sessions with rating agencies on at mutually agreeable times in mutually agreeable locations upon reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents providing reasonable assistance to Parent in connection with one or more credit agreements, purchase agreements, guarantees, certificates (including any solvency certificate contemplated by the Financing or any Alternative Financing, including to cause management Debt Commitment Letter) and other personnel definitive financing documents (including any pledge or security agreement) to participate in related drafting sessionsthe extent required of the Company;
(iii) furnish Purchaser furnishing Parent with any financial and the relevant financing sources non-financial other information or documents necessary for any customary bank information memoranda, lender presentations, (including delivery of the type required under the Securities Act customary authorization and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereonrepresentation letters), and including consents of accountants for use of their reports in any materials similar documents relating to the Financing or any Alternative Debt Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;and
(iv) assist at least five (5) Business Days prior to the Closing Date, furnishing Parent and the Debt Financing Sources with all customary documentation and information reasonably available regarding the Company required by regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, to the extent reasonably requested in obtaining accountants’ comfort letters and auditor’s reports writing by Parent at least seven (7) Business Days prior to the Closing Date.
(b) Nothing in respect this Section 6.7 will require the Company to (i) waive or amend any terms of audited financials this Agreement or agree to pay any fees or reimburse any expenses for which it has not received, or will receive, reimbursement; (including consents ii) enter into any definitive agreement that would be effective prior to the Closing; (iii) take any action that in the good faith determination of accountants for use the Company, would unreasonably interfere with the conduct of the business or the Company or create a risk of damage or destruction to any property or assets of the Company; (iv) take any action that would reasonably be expected to result in a violation or breach of, or default under, this Agreement, any organization documents of the Company, any material contract of the Company or any Law; (v) provide access to or disclose information which would result in waiving any attorney-client privilege, work-product or similar privilege, (vi) require the Company to prepare any pro forma financial statements or adjustments or projections or post-Closing or pro forma cost savings, synergies, capitalization adjustments, ownership or other post-Closing pro forma financial information, or (vii) engage in the drafting, negotiation or other preparation of the definitive agreements related to the Debt Financing. In addition, no action, liability or obligation of the Company or any of their reposts in respective Representatives pursuant to any materials certificate, agreement, arrangement, document or instrument relating to the Debt Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying will be effective until the conditions to fund under Closing, and neither the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for Company nor any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall its respective Representatives will be required to pay take any commitment action pursuant to any certificate, agreement, arrangement, document or other fee, instrument that is not contingent on the occurrence of the Closing or incur any other material liability, in connection with this Section 6.16, that must be effective prior to the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred Closing.
(c) The Company hereby consents to the use of its logos in connection with the Debt Financing so long as (i) such logos are used solely in a manner that is not intended or likely to harm, disparage or otherwise adversely affect the Company or the reputation or goodwill of the Company (and any Alternative Financingall goodwill arising from the use thereof shall inure to the Company), including (ii) such costs incurred logos are used solely in connection with compliance with Section 6.14. Purchaser shall indemnify a description of the Company, their business and hold harmless Seller, products or the transactions contemplated by this Agreement or the other members transaction documents, and (iii) the use of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewithsuch logos occurs post-Closing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Gambling.com Group LTD)
Financing Cooperation. (a) Each of the Parent and the Purchaser shall use, and shall cause its Affiliates to use, reasonable best efforts to take, or cause to be taken, all actions and use reasonable best efforts to do, or cause to be done, all things necessary, to consummate and obtain the Financing at or prior to the Acceptance Time, or if a Conversion Event shall have occurred, the Closing, on the terms and subject only to the conditions (including the market flex provisions) set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein)Financing Letters, including using reasonable best efforts to (i) maintain in effect the Financing Letters, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing consistent on the terms and subject only to the conditions (including the market flex provisions) set forth in the Debt Commitment Letter (or on terms not materially less favorable to the Parent or the Purchaser than the terms and conditions (including market flex provisions) set forth in the Debt Commitment Letter), (iii) satisfy (and cause its Affiliates to satisfy) on a timely basis all conditions applicable to the Parent and its Affiliates in the Financing Letters and the definitive agreements related thereto at or prior to the Acceptance Time, or if a Conversion Event shall have occurred, the Closing, (iv) enforce its rights under the Financing Letters (provided that, notwithstanding anything to the contrary contained in this Agreement, neither the Parent nor the Purchaser shall be required to commence any legal Proceeding against any Debt Financing Source under the Debt Commitment Letter) and (v) comply with its covenants and other obligations under the Financing Letters. The Parent and the Purchaser shall not, without the prior written consent of the Company, agree to or permit any amendment or modification to be made to, or grant any waiver of any provision under, the Financing Letters or the definitive agreements relating to the Financing if such amendment, modification or waiver would (A) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) or (B) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions to the Financing, or otherwise expand, amend or modify any other provision of the Financing Letters, in each case, in a manner that could reasonably be expected to delay or prevent the funding of the Financing (or satisfaction of the conditions to the Financing) at or prior to the Acceptance Time, or if a Conversion Event shall have occurred, the Closing. The Parent shall promptly deliver to the Company true and complete copies of any amendment, modification or waiver to or under any Financing Letter.
(b) Upon request of the Company, the Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing. The Parent and the Purchaser shall give the Company prompt notice
(i) of any breach, default, termination or repudiation by any party to any of the Financing Letters or definitive documents related to the Financing of which the Parent or the Purchaser becomes aware, (ii) of the receipt of any written notice or other written communication from any Financing source with respect to any breach, default, termination or repudiation by any party to any of the Financing Letters or any definitive document related to the Financing or any provisions of the Financing Letters or any definitive document related to the Financing, and (iii) of the occurrence of an event or development that could reasonably be expected to delay or prevent the funding of the Financing (or satisfaction of the conditions to the Financing) at or prior to the Acceptance Time, or if a Conversion Event shall have occurred, the Closing. As soon as reasonably practicable, but in any event within five (5) Business Days after the date the Company delivers to the Parent or the Purchaser a written request, the Parent and the Purchaser shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including any applicable market flex provisions) contemplated by the Debt Commitment Letter, and such portion is required to fund any portion of the Offer Price or the Merger Consideration or any fees, expenses and other amounts contemplated to be paid by the Parent or the Purchaser pursuant to this Agreement, the Parent and the Purchaser shall use their reasonable best efforts to arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions (including market flex provisions) not materially less favorable to the Parent and the Purchaser (and their respective Affiliates) than the terms and conditions set forth in the Debt Commitment Letter and Letter, as promptly as practicable following the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions occurrence of such event. The Parent shall deliver to the Financing set forth in Company true and complete copies of all material contracts or agreements (including Redacted Fee Letters) pursuant to which any such definitive agreements that are alternative source shall have committed to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or provide any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) For purposes of this Section 6.16(b)6.12, prior references to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative “Financing), which cooperation ” shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right Letters as permitted to include the information provided be amended, modified or replaced by Seller under this clause (iii) Section 6.12 and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating references to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other ” shall include such documents as may permitted to be reasonably requested amended, modified or replaced by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewith6.12.
Appears in 1 contract
Sources: Merger Agreement (Tangoe Inc)
Financing Cooperation. (a) Purchaser Each of Parent and Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Financing as soon as reasonably practicable on the terms and conditions set forth described in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein)Letters, including using reasonable best efforts to (i) maintain in full force and effect the Commitment Letters, (ii) negotiate and enter into definitive agreements (including “market flex” terms and conditions) with respect to the Financing consistent with thereto on the terms and conditions contained in the Debt Commitment Letter, (iii) comply with and satisfy all terms, covenants and conditions to funding set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions any definitive documents related to the Financing set forth in and the Equity Commitment Letters at or prior to the Closing, (iv) enforce its rights under the Commitment Letters and (v) consummate the Financing at or prior to the Effective Time. Neither Parent nor Sub shall terminate any Commitment Letter or reduce the amount of the Financing available thereunder. Parent will furnish true, correct and complete copies of all such material definitive agreements that are relating the Financing to be satisfied by Purchaser. Purchaser the Company promptly upon their execution if prior to the Effective Date.
(b) Parent shall comply keep the Company informed with its obligations, respect to all material activity concerning the status of the Financing and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller the Company prompt notice of any material breach by any party adverse change with respect to such Financing. Without limiting the Debt Commitment Letter of which Purchaser has become awareforegoing, or any purported termination of Parent agrees to notify the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”)Company promptly, and in any event within two (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to Business Days, if at any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
time (i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing Commitment Letters shall expire or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewith.terminated
Appears in 1 contract
Sources: Merger Agreement (Deltek, Inc)
Financing Cooperation. (a) Purchaser Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Financing as soon as reasonably practicable on the terms and conditions set forth described in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein)Letters, including using reasonable best efforts to (i) maintain in full force and effect the Commitment Letters, (ii) negotiate and enter into definitive agreements with respect to the Financing consistent with thereto on the terms and conditions contained in the Commitment Letters, (iii) comply with and satisfy all terms, covenants and conditions to funding set forth in the Debt Commitment Letter Letters and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions any definitive documents related to the Financing set forth in such that the Financing will be able to be consummated at or prior to the Effective Time, (iv) enforce its rights under the Commitment Letters and (v) consummate the Financing at or prior to the Effective Time. Neither Parent nor Merger Sub shall terminate any Commitment Letter or reduce the amount of the Financing available thereunder. Parent will furnish true, correct and complete copies of all such material definitive agreements that are relating the Financing to be satisfied by Purchaser. Purchaser the Company promptly upon their execution if prior to the Effective Date.
(b) Parent shall comply keep the Company informed with its obligations, respect to all material activity concerning the status of the Financing and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller the Company prompt notice of any material breach adverse change with respect to such Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time (i) any of the Commitment Letters shall expire or be terminated for any reason, (ii) any financing source that is a party to any Commitment Letter notifies Parent that such source no longer intends to provide financing to Parent on the terms set forth therein, (iii) any actual or threatened breach, default, termination or repudiation by any party to the Debt Commitment Letter of which Purchaser has become aware, Letters or any purported termination of definitive agreements relating to the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or any material dispute or disagreement between or among the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions parties to the consummation Commitment Letters or definitive agreements relating to the Commitment Letters with respect to the obligation to fund the Financing or the amount of the Financing or reduces the amount thereofto be funded at Closing, or (yiv) terminate, for any reason Parent or take any action Sub no longer believes in good faith that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable it will be able to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that obtain all or any portion of the Financing becomes unavailable contemplated by the Commitment Letters on the terms and conditions set forth in or within the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and timing described therein. Parent shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause Merger Sub not to, amend, supplement, waive or otherwise modify or replace, or agree to amend, supplement, waive or otherwise modify or replace, the other members Commitment Letters in any manner prohibited by Section 6.11(c). Upon any such amendment, supplement, waiver or modification or replacement of the Seller Group Commitment Letters in accordance with Section 6.11(c) and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financingthis Section 6.11(b), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the term “Required Information”); provided, however, that the Required Information shall in no event include any Commitment Letters,” “Management’s Discussion and Analysis”, “Compensation Discussion and AnalysisDebt Commitment Letters” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewith.“Equity
Appears in 1 contract
Financing Cooperation. (a) Purchaser Subject to Section 6.10(c) and Section 6.10(d), from and after the date of this Agreement, and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VIII, if requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub (including providing, subject to the subsequent sentence, reasonably available financial and other pertinent information regarding the Company and the Company Subsidiaries for use reasonable best efforts in usual and customary marketing and offering documents and to consummate the Financing on the terms and conditions set forth enable Parent to prepare pro forma financial statements required by SEC rules or Parent’s financing sources) in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization arrangement of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, bank debt financing or any purported termination of the Debt Commitment Letter. Purchaser shall notcapital markets debt financing, without the prior written consent of Seller, (x) permit in each case for any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results purpose in new (or adversely modifies any existing) conditions to connection with the consummation of the Financing Merger and the other transactions contemplated hereby, including without limitation for the purposes of financing any amounts that may become due in respect of the indebtedness of the Company and the Company Subsidiaries as of the Closing pursuant to change-of-control provisions or reduces the amount thereof, or otherwise (y) terminate, or take any action that would permit the termination ofcollectively, the “Debt Commitment Letter; providedRefinancing”), however, it being understood that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained Refinancing may involve increases in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all size of or availability under any portion of the Financing becomes unavailable debt obligations or facilities of the Company or the Company Subsidiaries. Notwithstanding the foregoing, the Company shall only be required to provide audited financial statements for the three fiscal years preceding the commencement of the marketing of any Debt Refinancing and unaudited financial statements for any subsequent fiscal quarter (it being understood and agreed that the availability of the Company’s financial statements on the terms and conditions set forth in the Debt Commitment Letter SEC’s E▇▇▇▇ system shall satisfy such requirement and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent Company shall not be unreasonably withheld), include required to provide any conditions financial statements prior to the consummation end of the applicable deadline to file such alternative financing that are not substantially financial statements with the same as SEC with the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), Company’s annual and (2quarterly reports) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser Company shall not be obligated required to agree to the utilization provide any standalone financial statements of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereofSubsidiary.
(b) Prior Subject to the Closing, and, with respect to clause (ivSection 6.10(c) of this and Section 6.16(b6.10(d), prior to from and after the Closingdate of this Agreement, Seller and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VIII, if reasonably requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary, proper or advisable under (x) the indentures listed in Section 3.18(b)(ii) of the Company Disclosure Letter and (y) the credit agreements listed in Section 3.18(b)(ii) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the transactions contemplated by this Agreement. Subject to Section 6.10(c) and Section 6.10(d), from and after the date of this Agreement, and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VIII, if and to the extent reasonably requested by Parent in writing, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (A) arranging for the termination of Existing Debt Documents (and the related repayment or redemption thereof), which repayment or redemption shall be the sole responsibility, cost and expense of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith or (B) obtaining any Consents required under any Existing Debt Documents to permit the consummation of the transactions contemplated by this Agreement as may be reasonably requested by Parent, and if reasonably requested by Parent, the Company shall, and shall cause the other members Company Subsidiaries to, execute and deliver such customary notices, agreements, documents or instruments necessary in connection therewith.
(c) Notwithstanding anything in this Section 6.10 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.10 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 Seller Group foregoing unless Parent provides the funding to the Company therefor in advance, (iii) amend or otherwise modify or agree to amend or otherwise modify any Existing Debt Document, which amendment or other modification is not conditioned on the Closing, (iv) incur any potential or actual liability or provide any indemnities in connection therewith or otherwise related to the Debt Refinancing prior to the Closing Date unless contingent upon the occurrence of the Closing, (v) take any actions that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and the Company Subsidiaries, (vi) take any actions that the Company reasonably believes could (A) violate its or the Company 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 the Company Subsidiaries or to a loss of any benefit to which the Company or the Company 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 the Company 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 the Company Subsidiaries, (x) fund any repayment, repurchase or redemption prior to the Closing, (xi) result in any of the Company’s or any of the Company Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.10, (xii) execute, deliver or enter into, or perform any agreement, document or instrument, including any definitive financing agreement, with respect to the Debt Refinancing that is not contingent upon the Closing or that would be effective prior to Closing, (xiii) be responsible for preparing any pro forma financial statements, (xiv) pass resolutions or consents, approve or authorize the execution of or take any other corporate action with respect to the Debt Refinancing that is not contingent on the Closing or that would be effective prior to the Closing or (xv) provide or cause its legal counsel to provide any legal opinions.
(d) Parent shall promptly, upon written request by the Company, (i) reimburse the Company and any of its Affiliates and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources Representatives for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable and all out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, expenses (including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify attorneys’ and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or accountants’ fees) incurred by any of them in connection with the arrangement cooperation required pursuant to this Section 6.10 and (ii) defend, indemnify and hold harmless the Company, the Company Subsidiaries and its and 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 Financing (cooperation required pursuant to this Section 6.10 or any Alternative Financing) and any information utilized in connection therewith. Notwithstanding this Section 6.10 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 Refinancing, payoff, amendments or other related or similar actions described in this Section 6.10 be obtained.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 7.03(b), as applied to the Company’s obligations under this Section 6.10, shall be deemed to be satisfied unless the Debt Refinancing has not been obtained as a result of the Company’s willful breach of its obligations under this Section 6.10.
Appears in 1 contract
Sources: Merger Agreement (Aircastle LTD)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) upon the reasonable written request of this Section 6.16(b), prior to and after the ClosingPurchaser, Seller shall, and shall cause the other members of the Seller Group (or, with respect to Eureka and its Subsidiaries, use commercially reasonable efforts to cause) the Acquired Entities and their respective officers, employees and advisors (including legal counsel and accountants) representatives to, provide use commercially reasonable efforts to cooperate reasonably in connection with the efforts of Purchaser in arranging the assumption, retirement, refinancing or any other course of action Purchaser elects to take with respect to the Credit Agreements, including using commercially reasonable efforts to: (i) cooperate reasonably with any customary lender due diligence process; (ii) furnish as promptly as practicable all cooperationdocumentation and other information required by any Governmental Entity or as reasonably requested by any lender under applicable “know your customer” or anti-money laundering rules and regulations, on a timely basis(iii) execute and deliver any definitive financing documents, including any necessary pledge and security documents, as reasonably requested by Purchaser and otherwise facilitating the pledging of collateral in connection with any refinancing of the Credit Agreements, if applicable, by Purchaser, including taking reasonable actions necessary to permit any potential financing sources to evaluate the Acquired Entities’ assets for the purpose of establishing collateral arrangements (including establishing bank and other accounts and blocked account and control agreements in connection with the Financing (or any Alternative Financingforegoing), which cooperation (iv) if applicable, seek to obtain customary payoff letters, lien terminations and releases and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of Indebtedness under the Credit Agreements and release of liens contemplated by any repayment or refinancing of such Indebtedness to be paid off, discharged and terminated on the Closing Date; provided that the documents in respect of such arrangements contemplated by this clause (iv) shall include using reasonable best efforts not be effective until the Closing Date. Notwithstanding the foregoing to timely:
the contrary, neither Seller nor any of its Affiliates (other than the Acquired Entities) shall be obligated or required to execute, deliver, or otherwise provide or agree to: (i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetingsany agreements, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering pledge or security documents, private placement memorandaor other certificates, bank information and syndication memorandalegal opinions, prospectusesinstruments or documents of any kind or character, marketing materials and similar documents in connection with the Financing Credit Agreements, and whether effective prior to, at or after Closing (and whether or not contingent upon the Closing), including, without limitation, any affidavits, indemnities or similar such instruments, in favor of any title company, lender or any Alternative Financingother Person or (ii) any agreements, including to cause management certificates, instruments or documents of any kind or character which expands or otherwise modifies either the representations and other personnel to participate warranties contained in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act this Agreement or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment covenants or other fee, obligations of Seller or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. its Affiliates to Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewithhereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (EQM Midstream Partners, LP)
Financing Cooperation. (a) Purchaser Subject to Section 6.14(f), until the earlier of the Closing and such time as this Agreement is terminated in accordance with ARTICLE VIII, the Company shall, and shall cause the Company Subsidiaries to, use its and their reasonable best efforts to, and shall direct its and their respective Representatives to, provide customary cooperation and customary financial information, in each case that is reasonably requested by Parent in connection with any financing contemplated by the Debt Commitment Letter (including for the avoidance of doubt, the Debt Financing) (it being understood and agreed that the receipt of any such financing is not a condition to the Merger or any of its other obligations under this Agreement), including using commercially reasonable efforts to: (i) participate in, and assist with, customary marketing efforts and marketing materials (including rating agency presentations, if applicable) for a financing of the type contemplated by the Debt Commitment Letter; (ii) execute and deliver any definitive financing documents, including any amendments, joinders, guarantees, pledge documents, security documents and other definitive financing documents (including, assuming the representations in Section 5.6 are correct, a solvency certificate of the chief financial officer of the Company in the form attached to the Debt Commitment Letter) and otherwise facilitating the pledging of, and the granting, recording and perfection of security interests in, the collateral (including, to the extent applicable, delivery of securities and share certificates); (iii) furnish to the Debt Financing Sources at least three (3) Business Days prior to the Closing Date (to the extent in writing requested at least ten (10) Business Days prior to the Closing Date) all documentation and other information required by regulatory authorities under applicable “know your customer”, beneficial ownership and anti-money laundering rules and regulations, including the PATRIOT Act; (iv) provide such other financial information regarding the Company or the Company Subsidiaries as shall be reasonably requested by Parent, Merger Sub or the Debt Financing Sources in connection with the Debt Financing; and (v) take such corporate actions as shall be reasonably requested to authorize and permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to finance the transactions contemplated in this Agreement (subject to any limits on the use of proceeds set forth herein); provided, that (x) none of the Company, the Company Subsidiaries or their Representatives or their Affiliates shall have, or be required to incur, any Liability or any obligation under any agreement or document related to the Financing, or to pay any commitment or similar fee or make any other payment or provide or agree to provide an indemnity in connection with the foregoing, in each case, the effectiveness of which is not conditioned upon the occurrence of the Closing Date; and (y) no party shall be required pursuant to this Section 6.14(a) to take any action that would reasonably be expected to result in the contravention of, or that would reasonably be expected to result in a violation of any applicable Laws or of any contracts binding on such party or its property.
(b) Parent shall indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives and Affiliates from and against any and all liabilities or losses suffered or incurred by them in connection with any action taken pursuant to this Section 6.14 and any information provided pursuant to this Section 6.14, except in the event such liabilities or losses arose out of or result from the (i) willful misconduct, gross negligence, or bad faith of the Company, the Company Subsidiaries or any of their respective Representatives, or (ii) (A) any material breach by the Company, the Company Subsidiaries or any of their respective Representatives under this Agreement or (B) any material misstatement or omission of material fact in information provided, in writing, to Parent or the Debt Financing Sources by the Company, the Company Subsidiaries or their respective Representatives or Affiliates. If this Agreement is terminated pursuant to Section 8.1(b), Parent shall, promptly upon request by the Company, reimburse the Company and the Company Subsidiaries for all reasonable and documented out-of-pocket costs actually incurred by the Company and the Company Subsidiaries (including those of its Representatives) in connection with taking action required or requested by Parent pursuant to this Section 6.14, except in the event such costs arose out of or result from the willful misconduct, gross negligence, or bad faith of the Company and the Company Subsidiaries, or any of their respective Representatives. For the avoidance of doubt, the Parties acknowledge and agree that the provisions contained in this Section 6.14 represent the sole obligation of the Company, the Company Subsidiaries and their respective Affiliates and Representatives with respect to cooperation in connection with the arrangement of the Financing and no other provision of this Agreement (including the Exhibits and the Company Disclosure Letter) shall be deemed to expand or modify such obligations.
(c) Until the earlier of the Closing and such time as this Agreement is terminated in accordance with ARTICLE VIII, each of Parent and Merger Sub shall use its reasonable best efforts to consummate do, or cause to be done, all things necessary to arrange and obtain the Financing on the terms and conditions set forth described in the Commitment Letters (including the “flex” provisions contained in any fee letters), including by using reasonable best efforts to: (i) maintain in effect the Commitment Letters; (ii) negotiate as promptly as possible, and enter into, definitive agreements relating to the Debt Financing at or prior to the Closing; (iii) satisfy (or obtain a waiver thereof) and to cause their Representatives to satisfy, on a timely basis all conditions applicable to Parent, Merger Sub or their respective Representatives in the Commitment Letters; (4) assuming that all conditions contained in the Debt Commitment Letter and have been satisfied or waived, cause the Fee Letter (which reasonable best efforts shall include agreeing Debt Financing to be consummated at or prior to the utilization Closing; (5) enforce its rights under the Commitment Letters; and (6) comply with its obligations under the Commitment Letters. Parent and Merger Sub shall keep the Company and its Representatives informed on a reasonably current basis and in reasonable detail with respect to all material activity concerning the status of any “market flex” provisions contained therein), including using reasonable best its efforts to obtain the Financing. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt written notice of (i) negotiate and enter into definitive agreements any material breach, default, termination or repudiation by Parent, or any other party thereto of which Parent or Merger Sub becomes actually aware, under the Commitment Letters, (ii) the receipt by Parent or Merger Sub of any written notice from any Debt Financing Source or Equity Investor with respect to any actual or potential material breach, termination or repudiation by such party to the Commitment Letters, of any provisions thereto, including with respect to any material dispute related to any Financing with respect to the obligation of the Debt Financing consistent with Sources to fund the Debt Financing or the Equity Investors to fund the Equity Financing, in each case, on the Closing Date and (iii) if at any time for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions set forth in contemplated by the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (Letters or obtain the waiver of) all conditions definitive agreements related to the Financing set forth in such definitive agreements that are to be satisfied Financing. Parent shall promptly provide any information reasonably requested by Purchaser. Purchaser shall comply with the Company and its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party Representatives relating to the Debt Commitment Letter of which Purchaser has become awareFinancing.
(d) Neither Parent nor Merger Sub shall agree to, or any purported termination of the Debt Commitment Letter. Purchaser shall notpermit, without the prior written consent of Sellerthe Company, (x) permit any amendment assignment, amendment, supplement or modification to be made to, replacement, restatement or substitution of, or any waiver by Parent or Merger Sub of any material provision or remedy under, the Debt Commitment Letter Letters (including with respect to any alternative financing intended to replace or be substituted for, in whole or in part, any portion of the Fee Letter Financing) if such assignment, amendment, supplement, modification, replacement, restatement, substitution or waiver would reasonably be expected to (1) reduce the aggregate amount of the net cash proceeds of the Financing to be funded on the Closing Date, to an amount less than the Required Amount, (2) impose new or remedy results additional conditions precedent or otherwise expand, amend or modify any of the conditions precedent to the receipt of the Financing, in new (each case in a manner that could reasonably be expected to prevent, impede or adversely modifies any existing) conditions to delay the consummation of the Financing or reduces (the amount thereofprohibited conditions described in this clause (2) are referred to herein as “Prohibited Conditions”), (3) adversely and materially impact the ability of Parent to enforce its rights against other parties to the Commitment Letters with respect to the Financing, or (y4) terminateprevent or impede or delay the consummation of the transactions contemplated by this Agreement; provided that Parent may amend, modify, assign, supplement, substitute, replace or restate the Commitment Letters to add (A) lenders, lead arrangers, book runners, syndication agents and similar entities, or take (B) increase the aggregate amount of the Financing, subject to the foregoing clauses (1) through (4).
(e) In the event that any action that would permit portion of the termination ofDebt Financing becomes unavailable in the manner or from the sources contemplated in the Debt Commitment Letters for any reason whatsoever, then (i) Parent shall promptly so notify the Company of such event and the reason therefor and (ii) Parent and Merger Sub shall use reasonable best efforts to arrange and obtain, and negotiate and enter into commitment letters and/or definitive agreements with respect to, alternative financing arrangements in an amount at least equal to the amount, when added with the Equity Financing, sufficient to pay the Required Amount and which is not subject to any conditions constituting Prohibited Conditions, as promptly as practicable following the occurrence of such event (and in any event no later than the Closing Date) (A) on terms and conditions not materially less favorable in the aggregate to Parent and Merger Sub than those contained in the Debt Commitment Letter; provided, however(B) containing conditions to draw, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on conditions to Closing and other terms that would reasonably be expected to affect the availability thereof that (1) are no less favorable to the interests of Seller not, in any material respect, more onerous than the those conditions and terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) would not reasonably be expected to delay the Closing or make the Closing materially less likely to occur. Parent and Merger Sub shall not be required to (x) pay fees in excess of one hundred fifty percent (150%) above those contemplated by the Debt Commitment Letter as in effect on the date of this Agreement, taking into account any flex terms, or (y) seek equity financing from any Person other than the Equity Investors or in an amount in excess of the Equity Financing contemplated by the Equity Commitment Letter as of the date hereof. Parent shall promptly notify Seller of such unavailability deliver to the Company a true and the reason therefore. Purchaser’s obligations complete fully executed new financing commitment letter with respect to such alternative financing. In the event any alternative debt financing is obtained, arranged or committed to, the term “Debt Financing” as used in this Agreement shall be deemed to include any such alternative financing (in lieu of the portion of the Debt Financing under replaced thereby), the term “Debt Financing Sources” and “Investors”, as applicable, shall include the financial institutions and other Persons providing the alternative debt financing and the term “Debt Commitment Letter” as used in this Agreement shall be deemed to include any new debt financing commitment letter(s), related term sheets and redacted fee letters obtained by Parent in respect of any such alternative financing.
(f) Notwithstanding anything to the contrary in Section 6.16(a6.14(a), (i) none of the Company, the Company Subsidiaries nor their respective Representatives shall also apply be required to take any action that would (A) reasonably be expected to conflict with, violate, breach or otherwise contravene their respective organizational documents, (B) in the good faith determination of the Company, the Company Subsidiaries or their respective Representatives, as applicable, materially and adversely interfere with the business or operations of the Company, the Company Subsidiaries or their respective Representatives, (C) cause any condition to Closing set forth in ARTICLE VII to not be satisfied or otherwise cause any breach of this Agreement, (D) require delivery of any legal opinions or accountants’ cold comfort letters or reliance letters, (E) subject any director, manager, officer or employee of the Company, the Company Subsidiaries or their respective Representatives to any Alternative Financing; actual or potential personal liability, (F) provide any information consisting of attorney work product or to the extent the provision thereof would reasonably be expected to result in the waiver of legal privilege, (G) require the delivery of any projections or pro forma financial statements to any third parties (other than the Debt Financing Sources), provided, however, that Purchaser any such projections delivered to the Debt Financing Sources (x) shall be providing in the ordinary course of business, (y) shall be in form and substance consistent with the Company’s past practices, and (z) shall not be obligated required to agree to address any period beyond one (1) year after the utilization date of delivery of such projections, (H) require the delivery of any “market flex” that is less favorable financial statements in a form or subject to Purchaser a different standard than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of those provided to Parent on or prior to the date hereof, or (I) require the Company or any Company Subsidiary to authorize any corporate action or execute any agreement that would be effective or operative prior to Closing, and (ii) upon the occurrence of the Closing Date, no Affiliate of the Company (other than the Company and the Company Subsidiaries on or after the Closing) shall be required to execute, deliver or enter into definitive documentation relating to the Financing.
(bg) Prior No later than two Business Days prior to the ClosingClosing Date, andthe Company shall transfer, with respect to clause a newly opened Emigrant Bank account (iv) of this Section 6.16(bthe “Emigrant Account”), prior an amount of cash equal to and after the Closingat least $17,500,000 but no more than $20,000,000, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, if Parent expressly consents in writing to any action or inaction by the Company pursuant to Section 6.1(b) that results in the Required Information shall Company maintaining an amount in no event include any “Management’s Discussion and Analysis”Cash that is less than $17,500,000, “Compensation Discussion and Analysis” or similar disclosure related the Company may transfer such reduced amount to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect Emigrant Account. No transfer of audited financials (including consents of accountants for use of their reposts in any materials relating cash to the Financing or any Alternative FinancingEmigrant Account pursuant to this Section 6.14(g) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required deemed to pay any commitment or other fee, or incur any other material liability, in connection with this be a breach of Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewith6.1.
Appears in 1 contract
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to From and after the Closingdate hereof until the Closing or the earlier termination of this Agreement, Seller the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts, at Parent’s sole cost and expense, to provide such cooperation that is customary and reasonably requested by Parent in writing in connection with arranging and obtaining the other members Debt Financing, including:
(i) participation, at reasonable times and places, in a reasonable number of meetings and due diligence sessions related to the drafting and negotiation of the Seller Group documentation for the Debt Financing;
(ii) cooperating with ▇▇▇▇▇▇ and its ▇▇▇▇▇▇ Sub and their respective officersefforts to obtain surveys and title insurance and consents, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basisin each case, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions▇▇▇▇▇▇;
(iii) furnish Purchaser taking all corporate, limited liability company, partnership or other similar actions reasonably necessary to permit the consummation of the Debt Financing, including the provisions of guarantees and the relevant financing sources non-financial information pledging of collateral so long as contingent upon the occurrence of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the BusinessClosing;
(iv) assist in obtaining accountants’ comfort letters furnishing Parent and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts Merger Sub promptly, and in any materials relating event, at least six Business Days prior to the Financing or any Alternative FinancingClosing Date, with all documentation and other information that Parent has requested in writing at least eight Business Days prior to the Closing Date that Parent has reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) as reasonably requested and the Customer Due Diligence Requirement for Financial Institutions issued by Purchaserthe U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act (such rule published May 11, 2016 and effective July 11, 2016);
(v) assist Purchaser in satisfying the conditions to fund under providing reasonable and customary assistance with ▇▇▇▇▇▇’s preparation, negotiation and execution of definitive financing documents, including any credit agreement, notes, guarantees, pledge and security documents and other definitive agreements for the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents Financing as may be reasonably requested by Parent or Merger Sub and subject to the relevant financing sourcesoccurrence of Closing; and
(viivi) otherwise arranging for the prepayment or repayment of any incurrence, guaranty or assumption of Indebtedness incurred pursuant to Section 6.1(j) (and the release and discharge of all related guaranties, liens and security interests), in each case, by providing to Parent customary pay-off letters and drafts of UCC-3 financing statements and other customary release and termination documents as may be reasonably cooperate with requested.
(b) Notwithstanding anything in this Agreement to the marketing contrary,
(i) nothing herein shall require the cooperation of other actions or efforts on the part of Purchaser and the Company or any of its financing sources for Subsidiaries or any of the directors, officers, employees or agents of any of the foregoing in connection with the Debt Financing (including delivery or causing the delivery of any reliance letters or any Alternative Financing; provided, however, that neither Seller nor certificate as to solvency or any other member certificate in connection with the Debt Financing) to the extent it would be effective prior to the Closing or, in the Company’s reasonable judgment, interfere unreasonably with the business or operations of the Seller Group Company and its Subsidiaries;
(ii) none of the Company, any of its Subsidiaries or any of the directors, officers, employees or agents of any of the foregoing shall be required to pay any commitment or other similar fee, or to incur any other material liability, liability or obligation or to enter into any Contract effective in connection with this Section 6.16the Debt Financing prior to the Closing;
(iii) none of the Company, the Financing any of its Subsidiaries or any Alternative Financing. Purchaser of the directors, officers, employees or agents of any of the foregoing shall reimburse Seller be required to take any action that could give rise to personal liability to any director, officer, stockholder, member, employee or agent of the foregoing that is not covered in full by directors and officers insurance covering such Person or by an indemnity from the Company or its Subsidiaries;
(iv) nothing herein shall require the directors, managers or similar governing body of the Company or its Subsidiaries, prior to the Closing, to adopt resolutions approving or otherwise approve the Contracts pursuant to which the Debt Financing is made;
(v) nothing herein shall require the Company to prepare stand-alone financial statements for reasonable any Subsidiaries of the Company or prepare financial statements that the Company has not historically prepared; and
(vi) nothing herein shall require the Company or any of its Subsidiaries to take any action that will conflict with or violate its organizational documents or any Laws or result in a breach of, or default under, any contractual obligation or otherwise breach any of the Company’s representations, warranties, covenants or agreements under this Agreement.
(c) Parent shall indemnify, defend and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, liabilities, fees and out-of-pocket costs incurred in connection with the Financing and any Alternative Financingexpenses (including reasonable, including such documented and invoiced fees and out-of-pocket costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members expenses of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses counsel) suffered or incurred by any of them in connection with any action taken by them pursuant to this Section 6.6 or otherwise arising from the arrangement Debt Financing, except to the extent such losses, liabilities, fees, costs and expenses arise out of (i) the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company, any of its Subsidiaries or any of their respective Representatives or (ii) information provided hereunder by any of the Financing foregoing Persons.
(or any Alternative Financingd) Parent shall, promptly upon request of the Company, reimburse the Company and any information utilized each of its Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (including reasonable, documented and invoiced fees and out-of-pocket costs and expenses of counsel) incurred by such Persons in connection therewithwith the cooperation required by this Section 6.6.
(e) Notwithstanding anything herein to the contrary, the condition set forth in Section 9.2(a), as it applies in respect of the Company’s obligations under this Section 6.6, shall be deemed satisfied unless the Company is in Willful and Material Breach of its obligations under this Section 6.6 and such breach is a proximate cause of Parent not being able to obtain the Debt Financing.
Appears in 1 contract
Sources: Merger Agreement (National Western Life Group, Inc.)
Financing Cooperation. (a) Purchaser From the date of this Agreement until the Closing Date, the Company agrees to use reasonable best efforts to provide, and shall use reasonable best efforts to consummate the Financing on the terms cause its Subsidiaries and conditions set forth in the Debt Commitment Letter its and the Fee Letter (which their officers, directors and employees to use reasonable best efforts shall include agreeing to provide, in each case at Parent’s sole expense, such cooperation as may be reasonably requested by Parent in connection with the utilization arrangement of any debt financing by Parent in connection with the transactions contemplated by this Agreement, including any consent or amendment under the Existing RBC Credit Facility (the “market flex” provisions contained thereinDebt Financing”), including using reasonable best efforts to to: (i) negotiate and enter into definitive agreements with respect furnish to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination Parent historical financial information of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group Company and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as Subsidiaries reasonably requested by Purchaser in connection with the Financing (or any Alternative Debt Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) definitive documents for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Debt Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act schedules and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements exhibits thereto, andin each case, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
Parent, (viiiii) otherwise reasonably cooperate with Parent in facilitating the marketing efforts pledge of Purchaser collateral and delivering original certificates with respect to all certificated securities (with transfer powers executed in blank) (it being understood that no such pledging of collateral will be effective until at or after the Closing and that such delivery of originals shall occur at or after the Closing), and (iv) provide Parent, at least three (3) Business Days prior to the Closing Date all documentation and other information with respect to the Company and its financing sources for Subsidiaries as shall have been reasonably requested in writing by Parent at least ten (10) Business Days prior to the Closing Date that is required in connection with the Debt Financing by U.S. regulatory authorities under applicable “know-your-customer”, beneficial ownership and anti-money laundering rules and regulations, including the Patriot Act. Notwithstanding the foregoing, (A) such requested cooperation shall not (i) unreasonably disrupt or interfere with the operations of the Company or its Subsidiaries or (ii) cause competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (B) nothing in this Section 5.16 shall require cooperation to the extent that it would reasonably be expected to (x) cause any condition to the Closing set forth in Article VI to not be satisfied, (y) increase materially the risk of any such condition not being satisfied or the satisfaction thereof being materially delayed, or (z) cause any breach of this Agreement, (C) neither the Company nor any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group its Subsidiaries shall be required to (1) pay any commitment or other feesimilar fee prior to the Effective Time, (2) incur or incur assume any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred liability in connection with the Debt Financing prior to the Effective Time, (3) provide access to or disclose information where the Company determines that such access or disclosure would reasonably be likely to jeopardize the attorney-client privilege or contravene any applicable Law or contract or (4) take any action that will conflict with or violate their respective certificate of incorporation, by-laws or comparable organizational documents or result in the contravention of and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members (D) none of the Seller Group and Company, its Subsidiaries or their respective directors, officersofficers or employees shall be required to execute, employees deliver or enter into, or perform any agreement, document or instrument with respect to any Debt Financing that is effective prior to the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or its Subsidiaries.
(b) Parent shall indemnify, defend and hold harmless each of the Company, its Subsidiaries and their Affiliates and representatives (each an “indemnified person”) from and against any and all Losses liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the arrangement Debt Financing and the performance of the Financing (or any Alternative Financing) their respective obligations under this Section 5.16 and any information utilized in connection therewith, other than as a result of such indemnified person’s gross negligence or willful misconduct, as determined by a final judicial determination. Parent shall, promptly upon request of the Company, reimburse the Company and its Subsidiaries for all out-of-pocket fees, costs and expenses incurred by the Company or its Subsidiaries (including those of its Affiliates and representatives) in connection with the cooperation required by this Section 5.16 (the Parent’s reimbursement obligations under this last sentence of Section 5.16, the “Financing Obligations”).
(c) For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing (including the Equity Financing or the Debt Financing) by Parent or any of its Affiliates or any other financing be a condition to any of Parent’s or Merger Sub’s obligations under this Agreement.
(d) At the request of Parent, the Company shall provide fully executed payoff letters prior to the Closing Date in form and substance reasonably satisfactory to Parent with respect to all indebtedness required as a result of this Agreement to be repaid on the Closing Date (or requested by Parent to be so repaid), which payoff letters shall be accompanied by (i) any termination documents required to release any guarantees provided in connection therewith and (ii) any termination and/or release documents required to release any securities interests securing such indebtedness.
Appears in 1 contract
Financing Cooperation. (a) Purchaser Between the date of this Agreement and the Acquisition Merger Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company may, but shall use reasonable best efforts not be required to, enter into debt commitment letters, engagement papers, debt term sheets, incremental amendments to the Credit Agreement and any definitive debt financing documents that reflect the terms therein, and consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing transactions thereunder with certain debt financing sources relating to the utilization provision of any such debt financing for the benefit of the Company (and, following the Acquisition Closing, PubCo) (the “market flex” provisions contained thereinDebt Financing”), including using reasonable best efforts in each case, in consultation with Sponsor, in compliance with the other provisions of this Agreement, and only to the extent such debt is incurred (i) negotiate and enter into definitive agreements with respect to in the Financing ordinary course of business consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and past practice or (ii) satisfy on a timely basis in connection with any acquisition by the Company (including by merger, consolidation, or obtain acquisition of stock or substantially all of the waiver ofassets or any other business combination) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become awarecorporation, partnership, other business organization or any purported termination of division thereof. Notwithstanding the Debt Commitment Letter. Purchaser shall notforegoing, without the SPAC’s prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions consent not to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include the Company shall not consummate any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter acquisition, merger, or otherwise be materially less favorable to the interests of Seller (other business combination, enter into any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations binding definitive agreement with respect to any such transaction, or incur any related financing, if any such transaction or agreement would require the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization preparation of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as financial statements of the date hereof.
(b) acquired business pursuant to Regulation S-X Rule 3-05. Prior to the Closing, and, with respect to clause (iv) earlier of the Initial Closing and the termination of this Section 6.16(b)Agreement in accordance with its terms, prior to and after the Closing, Seller shallSPAC agrees, and shall cause the other members of the Seller Group and its and their respective appropriate directors, officers, employees and advisors (including legal counsel Representatives thereof to provide customary cooperation that is both necessary and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser the Company to assist the Company in connection with causing the conditions to the Debt Financing (to be satisfied or any Alternative as is otherwise reasonably requested by the Company in connection to the Company’s efforts to obtain the Debt Financing), in each case, at the Company’s expense, which cooperation shall include using commercially reasonable best efforts to timely:
(iA) cause senior management and other appropriate employees of the Business to upon reasonable prior notice, participate in a reasonable number of meetings, calls, drafting sessions, presentations, road shows, and due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies on prospective debt financing sources at mutually agreeable times and locations and upon reasonable advance notice;
notice (iiincluding the participation in any relevant “roadshow”), (B) provide documentation and other information requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, and any applicable beneficial ownership regulations, (C) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing customary materials and similar (D) execute and deliver as of the Closing Date any diligence questionnaires, perfection certificates, credit agreements, indentures, joinder agreements, guaranty agreements, security agreements, pledge agreements, deposit account control agreements, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents in connection with the Financing Credit Agreement or otherwise, any Alternative Financingsupplements, including modifications, reaffirmations or similar documents with respect to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information any of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act foregoing, or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant Company or its debt financing sources; and
, it being understood that the effectiveness of any such documents, if executed, shall be conditioned upon, or become operative only after, the occurrence of the Acquisition Merger Effective Time. Notwithstanding anything to the contrary in this Agreement, (viia) otherwise reasonably cooperate with neither the marketing efforts of Purchaser and its financing sources for SPAC nor any of the Financing or any Alternative Financing; providedits Subsidiaries, however, that neither Seller nor any of their respective Affiliates, nor any of their respective directors, officers, employees or agents, shall be required to execute of enter into any certificate, instrument, agreement or other member document in connection with this Section 7.21 which will be effective prior to the Acquisition Merger Effective Time, (b) neither the SPAC nor any of the Seller Group shall its Subsidiaries, nor any of their respective Affiliates, nor any of their respective directors, officers, employees or agents, will be required to pay any commitment or other fee, fee or to incur any other material liabilityexpense, in connection with liability or obligation prior to the Acquisition Merger Effective Time, (c) nothing herein shall require the Governing Board of the SPAC or any of its Subsidiaries, prior to the Acquisition Merger Effective Time, to adopt resolutions approving the agreements, documents or instruments pursuant to this Section 6.167.21, and (d) nothing herein shall require cooperation that would cause any director, manager, officer, employee, or equityholder of the Financing SPAC or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and of its Subsidiaries to incur any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewithpersonal liability.
Appears in 1 contract
Sources: Business Combination Agreement (Haymaker Acquisition Corp. 4)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing Prior to the utilization of any “market flex” provisions contained therein)Effective Time, including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligationsCompany shall, and shall cause the Company Subsidiaries to, and shall use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) Representatives to, provide to Purchaser all cooperationcustomary cooperation and all customary financial information, on a timely basis, as in each case that is reasonably requested by Purchaser Parent in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Debt Financing (it being understood that Purchaser shall have the right receipt of the Debt Financing is not a condition to include the Merger), including using commercially reasonable efforts to: (i) provide all information provided reasonably requested by Seller under this clause Parent and the Financing Parties (or any replacement thereof) customarily used in marketing materials for financing transactions comparable to the Financing, (ii) designate members of senior management of the Company to provide such cooperation in connection with the Debt Financing as is reasonably requested, at reasonable times to be mutually agreed, by Parent and the Financing Parties, (iii) provide reasonable cooperation with the due diligence efforts of the Financing Parties to the extent reasonable and customary, including delivery to Parent and the other Required Information in a current report filed with the SEC) (Financing Parties of such informationdue diligence materials as are reasonably available and reasonably requested by Parent, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) reasonably assist Parent in obtaining accountants’ comfort arranging for the replacement or continuation of the existing letters of credit of the Company and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
Company Subsidiaries, and (v) reasonably assist Purchaser in satisfying the conditions to fund under preparation, of definitive financing documents as may be required by the Debt Commitment Letter;
(vi) execute or obtain Financing, and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
Parent (vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for including loan agreements, guarantees, as applicable), provided that in no event shall any of the Financing or any Alternative Financingforegoing be effective until as of immediately after the Closing; provided, however, that neither Seller nor any other member of the Seller Group (A) no such cooperation shall be required to pay the extent it would (I) unreasonably disrupt the conduct of the Company’s business or create an unreasonable risk of damage or destruction to any commitment property or assets of the Company or the Company Subsidiaries, (II) require the Company or the Company Subsidiaries to incur any fees, expenses or other feeliability prior to the Effective Time for which it has not received prior or simultaneous reimbursement or is not otherwise indemnified by or on behalf of Parent in accordance with Section 6.13(d) and Section 6.13(e), (III) be reasonably expected to cause any director, officer or employee of the Company or any Company Subsidiary to incur any personal liability, (IV) require the Company to waive, amend or violate any terms of this Agreement, (V) require the Company to provide any information that is prohibited or restricted by applicable Law or would give rise to a material risk of the loss of any attorney client, attorney work product or other legal privilege (provided, however, (X) that the Company shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of Law or to allow for such access or disclosure to the maximum extent that does not give rise to a material risk of the loss of such privilege and (Y) that the Company shall use reasonable best efforts to provide all documentation and other information required by Japanese bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including, the Act on Prevention of Transfer of Criminal Proceeds of Japan), relating to the Company and the Company Subsidiaries at least three (3) Business Days prior to Closing, in each case as reasonably requested (in English) by Parent at least eight (8) Business Days prior to Closing), (VI) conflict with or violate or that would reasonably be expected to conflict with, or incur result in a violation of, the Company Governing Documents or the organizational or governing documents of any other material liabilityCompany Subsidiary or result in, prior to the Effective Time, the contravention of, or that would reasonably be expected to result in, prior to the Effective Time, a violation or breach of, or default under, any Material Contract to which the Company or any Company Subsidiary is a party, (VII) that would unreasonably disrupt the conduct of the Company’s business, (VIII) require the Company, any Company Subsidiary or their counsel to provide any legal opinion in connection with this Section 6.16, the Financing or (IX) require the preparation or delivery of any Alternative financial statements or other financial data that are not prepared in the ordinary course of its financial reporting practice; it being understood and agreed that under no circumstances shall the Company and its Subsidiaries be required to provide projections, estimates or pro forma financial information, including any pro forma cost savings, synergies, capitalization or other pro forma adjustments to be incorporated into any pro forma financial information, all of which shall be the responsibility of Parent and Merger Sub; and (B) the Company and the Company Subsidiaries shall not be required to (I) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time or (II) provide any indemnity prior to the Effective Time.
(b) The Company hereby consents to the reasonable use of the Company’s and the Company Subsidiaries’ trademarks, service marks and logos solely in connection with the financing for the Transactions; provided that such trademarks, service marks and logos (i) are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or the Company Subsidiaries, and (ii) are used solely in connection with the Financing or a description of the Company, its business and products or the Merger.
(c) All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent will be permitted to disclose such information to any Financing Parties so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary.
(d) Parent shall promptly, upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket expenses (including (A) reasonable and documented out-of-pocket attorneys’ fees and (B) reasonable and documented out-of-pocket expenses of the Company’s accounting firms engaged to assist in connection with the Financing. Purchaser ) incurred by the Company or any Company Subsidiary or their respective Representatives in connection with the cooperation of the Company and the Company Subsidiaries and Representatives contemplated by this Section 6.13.
(e) Parent shall reimburse Seller for indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, reasonable and documented out-of-pocket costs incurred and expenses (including reasonable and documented out-of-pocket attorneys’ fees), interest, awards, judgments, penalties and amounts paid in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses settlement suffered or incurred by any of them in connection with the arrangement of the Financing (including the performance of their respective obligations under, or the taking of or refraining from any action in accordance with, this Section 6.13); except to the extent such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments, penalties or amounts paid in settlement arise from (x) the gross negligence, bad faith or willful misconduct of the Company, the Company Subsidiaries or any Alternative Financingof their respective Representatives or (y) a Willful and Material Breach by the Company, the Company Subsidiaries or any information utilized of their respective Representatives.
(f) Except as set forth in the Debt Commitment Letter, in no event will the Guarantor, Parent or any of their respective affiliates (which for this purpose will be deemed to include the financing sources or potential financing sources of Guarantor, Parent and their respective affiliates) enter into any Contract (i) awarding any agent, broker, investment banker or financial advisor any financial advisory role on an exclusive basis in connection therewithwith the Merger or other Transactions; or (ii) expressly prohibiting any bank, investment bank or other potential provider of debt financing from providing or seeking to provide debt financing or financial advisory services to any Person, in each case in connection with a transaction relating to the Company or any Company Subsidiary.
(g) The Parties acknowledge and agree that obtaining the Financing is not a condition to the Closing. Notwithstanding anything in this Agreement to the contrary, the Company’s breach of Section 6.12(b) or this Section 6.13 will not be asserted as the basis for (A) any conditions set forth in Article VII to consummate the Merger having not been satisfied or (B) the termination of this Agreement pursuant to Article VIII. If the Financing has not been obtained, Parent and Merger Sub will each continue to be obligated, subject to the satisfaction or waiver of the conditions set forth in Article VII, to consummate the Transactions, including the Merger.
Appears in 1 contract
Financing Cooperation. (a) Purchaser shall use reasonable best efforts During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to consummate occur of the Financing on the terms and conditions set forth in the Debt Commitment Letter termination of this Agreement pursuant to Article VIII and the Fee Letter Effective Time, the Company shall, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ Representatives to, at Parent’s sole expense, reasonably cooperate in connection with the arrangement of the Financingany financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by this Agreement as may be reasonably requested by Parent (which provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). Such cooperation by the Company shall include, at the reasonable best efforts shall include agreeing to the utilization request of any “market flex” provisions contained therein), including using reasonable best efforts to Parent:
(i) negotiate and agreeing to enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligationsagreements, and to use its reasonable best efforts to enforce deliver such officer’s certificates, as are customary in financings of such type and as are, in the good faith determination of the persons executing such officer’s certificates, accurate, and agreeing to pledge, grant security interests in, and otherwise grant liens on, the Company’s and its rightsmaterial Subsidiaries’ assets pursuant to such agreements as may be reasonably requested;
(ii) providing to the Lenderany lender that is providing any financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by this Agreement financial and other information relevant to the Financingsuch financing in the Company’s or its Subsidiaries’ possession or that is reasonably available or that the Company or its Subsidiaries prior to the date hereof in the ordinary course of business would have produced (and in accordance with the timeframe in which such information would have been produced) (including audited and unaudited financial statements as of and for periods both before and after the date hereof, under provided that such financial statements shall be provided in a manner as is consistent with the Debt Commitment Letter and Company’s existing practices), assisting in the Fee Letter. Purchaser shall give Seller prompt notice preparation of any material breach pro forma financial information or projections, making the Company’s and its Subsidiaries’ senior officers available at reasonable times and for a reasonable number of meetings to assist the Lenderany lender that is providing any financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by any party to the Debt Commitment Letter this Agreement (including by way of which Purchaser has become awareparticipation in meetings, or any purported termination of the Debt Commitment Letter. Purchaser shall notpresentations, without the prior written consent of Sellermarketing sessions and due diligence sessions), (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results and otherwise reasonably cooperating in new (or adversely modifies any existing) conditions to connection with the consummation of the Financing or reduces the amount thereof, or Financingany such financing;
(yiii) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its using reasonable best efforts to obtain as promptly as possible alternative financing from the Company’s and its Subsidiaries’ accounting firm accountants’ comfort letters and consents customary for debt financings, and assisting Parent and its counsel with information required for customary legal opinions required to be delivered in connection therewith and cooperating in obtaining any necessary valuations;
(including from iv) furnishing all documentation and other sources) in an amount such information about the Company and its Subsidiaries that the aggregate potential financing available to Purchaser sources have reasonably determined is equal to required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations;
(v) taking all corporate, limited liability company, partnership or other similar actions by the Purchase Price, which alternative financing shall be on terms Company and its Subsidiaries that are no less favorable reasonably necessary to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to permit the consummation of such alternative financing that are not substantially the same as necessary financing; and
(vi) using reasonable best efforts to cooperate with Parent to satisfy any conditions precedent to any the conditions Financingfinancing to the Financing set forth extent within the control of the Company and its Subsidiaries. Parent shall promptly reimburse the Company for any out-of-pocket expenses and costs reasonably incurred in connection with the Debt Commitment Letter Company’s or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s its Affiliates’ obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof).
(b) Prior Notwithstanding anything in this Agreement to the Closingcontrary:
(i) nothing in this Agreement shall require any cooperation to the extent that it would require the board of directors of the Company or any of its Subsidiaries to take any action or the Company or any of its Subsidiaries or Representatives, andas applicable, with respect to clause (iv) waive or amend any terms of this Section 6.16(b)Agreement, agree to pay any commitment or other fees or reimburse any expenses prior to and after the Closing, Seller shall, and shall cause Effective Time (for which the other members Company is not promptly reimbursed by Parent) or to approve the execution or delivery of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser any document or certificate in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management alternative financing)financing that Parent and other appropriate employees of Acquisition Sub may raise in connection with the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance noticetransactions contemplated by this Agreement;
(ii) assist with no officer of the preparation Company or any of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents its Subsidiaries who is not reasonably expected to be an officer of the Surviving Corporation shall be obligated to deliver any certificate in connection with the Financing Financingany financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by this Agreement and no counsel for the Company or any Alternative Financing, including of its Subsidiaries shall be obligated to cause management and other personnel to participate deliver any opinion in related drafting sessions;connection with the Financingany such financing; and
(iii) furnish Purchaser and the relevant financing sources non-financial information irrespective of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A above, no obligation of the Securities Act Company or registered offerings any of debt securities its Subsidiaries under any certificate, document or instrument (other than the Securities Act by strategic acquirors of businesses authorization letters referred to finance such acquisitions, to consummate any offering of securities contemplated by above) shall be effective until the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) Effective Time and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case none of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing Company or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group Subsidiaries shall be required to pay take any commitment action under any certificate, document or other fee, instrument that is not contingent upon the Closing (including entry into any agreement that is effective before the Effective Time or incur distribution of any other material liability, in connection with this Section 6.16, cash by or to the Financing Company that is effective before the Effective Time) or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with that would be effective prior to the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewithEffective Time.
Appears in 1 contract
Financing Cooperation. (a) Purchaser Parent shall, and shall cause its Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary to consummate the Financing on or any Substitute Financing as promptly as possible following the terms and conditions set forth date of this Agreement (and, in any event, no later than the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained thereinClosing Date), including using reasonable best efforts to (i) negotiate (A) maintain in effect the Debt Letters and in all material respects comply with all of their respective obligations thereunder and (B) negotiate, enter into and deliver definitive agreements with respect to the Financing consistent with reflecting the terms contained in the Debt Letters (or with other terms agreed by Parent and the Financing Source Parties, subject to the restrictions on amendments of the Debt Letters set forth below), so that such agreements are in effect no later than the Closing, and (ii) satisfying on a timely basis all the conditions to the Financing and the definitive agreements related thereto that are in Parent’s (or its Affiliates’) control. In the event that all conditions set forth in Sections 9.01 and 9.02 have been satisfied or waived or, upon funding shall be satisfied or waived, Parent and its Affiliates shall use their reasonable best efforts to cause the Persons providing the Financing (the “Financing Parties”) to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby. Parent shall, promptly after obtaining knowledge thereof, give the Company written notice of any (A) material breach or default by a Financing Party or any party to any definitive document related to the Financing of the Debt Letters or any definitive document related to the Financing, (B) actual or threatened withdrawal, repudiation or termination in writing of the Debt Letters or the Financing by the Financing Parties or (C) material dispute or disagreement between or among any parties to the Debt Letters or any definitive document related to the Financing; provided, that neither Parent nor any of its Affiliates shall be under any obligation to disclose any information that is subject to attorney client or similar privilege to the extent such privilege is asserted in good faith. Parent may amend, modify, terminate, assign or agree to any waiver under the Debt Letters without the prior written approval of the Company, provided, that Parent shall not, without Company’s prior written consent, permit any such amendment, modification, assignment, termination or waiver to be made to, or consent to any waiver of, any provision of or remedy under the Debt Letters which would (A) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) such that the aggregate funds that would be available to Parent on the Closing Date would not be sufficient to provide the funds required to be funded on the Closing Date to consummate the Merger, or (B) impose new or additional conditions to the Financing or otherwise expand, amend, modify or waive any of the conditions to the Financing (unless such expanded, amended or modified conditions are in the aggregate substantially equivalent to (or more favorable to the Company and Parent than) the existing conditions to the Financing, or (C) otherwise expand, amend, modify or waive any provision of the Debt Letters in a manner that in any such case would reasonably be expected to (1) materially delay or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date, (2) materially adversely impact the ability of Parent to enforce its rights against the Financing Parties or any other parties to the Debt Letters or the definitive agreements with respect thereto or (3) materially adversely affect the ability of Parent to timely consummate the Merger and the other transactions contemplated hereby; provided, that notwithstanding the foregoing, Parent may modify, supplement or amend the Debt Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Letters as of the date of this Agreement. In the event that new commitment letters and/or fee letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Debt Letters permitted pursuant to this Section 8.04, such new commitment letters and/or fee letters shall be deemed to be a part of the “Financing” and deemed to be the “Debt Letters” for all purposes of this Agreement. Parent shall promptly deliver to the Company copies of any termination, amendment, modification, waiver or replacement of the Debt Letters. If funds in the amounts set forth in the Debt Commitment Letter Letters, or any portion thereof, become unavailable, Parent shall, and shall cause its Affiliates, as promptly as practicable following the Fee Letter occurrence of such event to (x) notify the Company in writing thereof, (y) obtain substitute financing (on terms and (ii) satisfy on conditions that are not materially less favorable to Parent, taken as a timely basis (or obtain whole, than the waiver of) all terms and conditions to the Financing as set forth in the Debt Letters, taking into account any “market flex” provisions thereof) sufficient to enable Parent to consummate the Merger and the other transactions contemplated hereby in accordance with its terms (the “Substitute Financing”) and (z) obtain a new financing commitment letter that provides for such Substitute Financing and, promptly after execution thereof, deliver to the Company true, complete and correct copies of the new commitment letter and the related fee letters (in redacted form reasonably satisfactory to the Persons providing such Substitute Financing removing only the fee amounts, pricing caps, the rates and amounts included in the “market flex” and other economic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Financing) and related definitive agreements that are financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be satisfied by Purchaser. Purchaser a part of the “Financing” and any commitment letter for such Substitute Financing shall comply with its obligationsbe deemed the “Debt Letters” for all purposes of this Agreement.
(b) Parent shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts that become due and payable under the Debt Letters.
(c) Notwithstanding anything contained in this Agreement to the contrary, Parent and Merger Corp expressly acknowledge and agree that neither Parent’s nor Merger Corp’s obligations hereunder are conditioned in any manner upon Parent or Merger Corp obtaining the Financing, any Substitute Financing or any other financing.
(d) The Company shall, and shall cause each of its Subsidiaries to, and shall use its reasonable best efforts to enforce cause its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification their Representatives to, or any waiver of any material provision or remedy underprovide to Parent such customary cooperation, as may be reasonably requested by Parent to assist Parent in causing the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter Letters to be satisfied and such customary cooperation as is otherwise reasonably requested by Parent solely in connection with obtaining the Financing, which reasonable best efforts shall include:
(which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that i) reasonable cooperation with customary marketing efforts of Parent for all or any portion of the Financing becomes unavailable on the terms Financing, including causing its management team, with appropriate seniority and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”)expertise, and (2) promptly notify Seller of such unavailability external auditors to assist in preparation for and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies on agencies, in each case, upon reasonable advance noticenotice and at mutually agreeable dates and times;
(ii) assist providing reasonable assistance with the preparation of materials (including business projections customary rating agency presentations, road show materials, bank information memoranda, prospectuses and similar bank syndication materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials memoranda and similar documents customarily required (which may incorporate, by reference, periodic and current reports filed by the Company with the SEC) in connection with the marketing and syndication of Financing (as set forth in the Debt Letters as in effect on the date of this Agreement) or any Alternative Financing, including in connection with a customary offering of debt securities of the type described in the second paragraph of the introduction to cause management and other personnel to participate in related drafting sessionsthe Commitment Letter;
(iii) using reasonable best efforts to furnish Purchaser Parent, within a reasonable amount of time following Parent’s reasonable request, with information available to the Company relating to the Company and its Subsidiaries to the relevant financing sources non-financial information extent required to consummate the Financing in accordance with the terms of the Debt Letters as in effect on the date of this Agreement or in connection with a customary offering of debt securities of the type described in the second paragraph of the introduction to the Commitment Letter, and providing reasonable assistance to the Parent’s preparation of pro forma financial information and projections required under to consummate the Securities Act and Financing in accordance with the terms of type and form customarily included the Debt Letters as in private placements effect on the date of this Agreement or in connection with a customary offering of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, type described in the case second paragraph of the Audited Business Financial Statements, introduction of the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the BusinessCommitment Letter;
(iv) assist in obtaining accountants’ comfort letters using reasonable best efforts to furnish Parent at least three Business Days prior to the Closing Date (to the extent requested within 10 Business Days prior to the Closing Date), with all documentation and auditor’s reports in other information related to the Company and its Subsidiaries as and solely to the extent required by any Governmental Authority with respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing(as set forth in the Debt Letters as in effect on the date of this Agreement) as reasonably requested by Purchaserunder applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(v) assist Purchaser requesting that the Company’s independent accountants participate in satisfying drafting sessions and accounting due diligence sessions and cooperate with the conditions to fund under Financing (as set forth in the Debt Letters as in effect on the date of this Agreement) or in connection with a customary offering of debt securities of the type described in the second paragraph of the introduction to the Commitment Letter consistent with their customary practice, including requesting that they provide customary comfort letters (including “negative assurance” comfort) to the extent required in connection with the marketing and syndication of Financing (as set forth in the Debt Letters as in effect on the date of this Agreement) or as are customarily required in an underwritten offering of debt securities of the type described in the second paragraph of the introduction to the Commitment Letter;; and
(vi) execute using reasonable best efforts to arrange for acustomary payoff letter to be delivered at or obtain prior to Closing relating to the payoff and deliver at termination of the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; andCredit Agreement.
(viie) otherwise reasonably cooperate with Notwithstanding anything to the marketing efforts of Purchaser and its financing sources for contrary contained in this Agreement (including this Section 8.04): (i) nothing in this Agreement (including this Section 8.04) shall require any of such cooperation to the Financing or any Alternative Financing; provided, however, extent that neither Seller nor any other member of it would (A) require the Seller Group shall be required Company to pay any commitment or other feefees, reimburse any expenses or otherwise incur any liabilities or give any indemnities prior to the Closing, (B) unreasonably interfere with the ongoing business or operations of the Company and/or its Subsidiaries, (C) require the Company or any of its subsidiaries to enter into or approve any agreement or other documentation effective prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing or (D) require the Company, any of its Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize the Financing, and (ii) no action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of the Company, its Subsidiaries, or incur any other material liabilityof their respective Representatives under any certificate, in connection with this Section 6.16agreement, arrangement, document or instrument relating to the Financing or any Alternative Financing. Purchaser shall be effective until the Closing.
(f) Parent shall (i) promptly upon request by the Company, reimburse Seller the Company for all of its reasonable and documented out-of-pocket costs fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company, any of its Subsidiaries or any of its or their Representatives in connection with any cooperation contemplated by this Section 8.04 and (ii) indemnify and hold harmless the Company, its Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable and documented out-of-pocket attorneys’ fees) or settlement payment incurred as a result of, or in connection with, such cooperation or the Financing, except to the extent arising out of gross negligence, bad faith, material breach or willful misconduct of the Company.
(g) The Company hereby consents to the use of its trademarks and logos in connection with the Financing Financing; provided, that such trademarks and logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, of its Subsidiaries or the other members reputation or goodwill of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered Company or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewithits Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (CAREFUSION Corp)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts take, or cause to consummate be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Equity Financing on the terms and conditions set forth described in the Debt Equity Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing as promptly as possible but in any event prior to the utilization of any “market flex” provisions contained therein)date upon which the applicable Closing is required to be consummated pursuant to the terms hereof, including using reasonable best efforts to by (i) negotiate causing Purchaser Parent to maintain in effect and enter into definitive agreements comply with respect to its obligations under the Financing consistent with the terms and conditions set forth in the Debt Equity Commitment Letter and the Fee Letter and (ii) satisfy satisfying on a timely basis (or obtain the waiver of) all conditions to in the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Equity Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. complying with its obligations thereunder.
(b) Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Equity Commitment Letter or Letter.
(c) Purchaser does not require any financing other than the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation proceeds of the Equity Financing or reduces in order to consummate the amount thereoftransactions contemplated by this Agreement. However, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all Purchaser or any portion of its Affiliates determines to pursue any debt financing that would take effect at or after the Closing relating to any of the Financing becomes unavailable on Transferred Entities or the terms and conditions set forth in the Debt Commitment Letter and the Fee LetterBusiness, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including then from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closingdate hereof until the final Closing Date, Seller shall, and shall cause the other members of the Seller Group each applicable Transferred Entity to (and its and use commercially reasonable efforts to cause their respective officers, employees and advisors (including legal counsel and accountants) Representatives to), provide to Purchaser all cooperation, reasonable cooperation on a timely basis, as reasonably requested by Purchaser basis in connection with the Financing arrangement of any such debt financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of such debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financingfinancing, the “Required InformationDebt Financing”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by Purchaser and necessary for the relevant financing sources; and
arrangement of such Debt Financing (viito the extent within the control of Seller), including by using commercially reasonable efforts to provide to Purchaser, if so requested by Purchaser in writing no later than ten (10) otherwise reasonably cooperate days prior to the end of the Applicable Quarter, within sixty (60) days after the end of each full fiscal quarter which occurs during the period commencing from the date hereof until the Closing Date (each, an “Applicable Quarter”), an unaudited balance sheet and related unaudited statement of operations, in each case for the Transferred Entities on a consolidated basis and prepared in a manner consistent with the marketing Business Financial Information (the “Quarterly Financial Information”), for such fiscal quarter (it being understood that Seller shall have satisfied its obligations set forth in this clause if Seller shall have used its commercially reasonable efforts of Purchaser and its financing sources for to comply with such obligations whether or not any of the Financing applicable deliverables are actually obtained or provided). Notwithstanding any Alternative Financing; providedprovision in this Section 5.17, however, that neither Seller nor any other member of the Seller Group its Subsidiaries shall be required to pay take or permit the taking of any commitment action pursuant to this Section 5.17 that: (i) would require Seller, its Subsidiaries or any of their respective Representatives to pass resolutions or consents to approve or authorize the execution of the Debt Financing or enter into, amend, execute or deliver any certificate, document, instrument or agreement; (ii) would cause any representation or warranty in this Agreement to be breached by Seller or any of its Subsidiaries; (iii) would require Seller or any of its Subsidiaries to incur any fees, expense, liabilities or other fee, or incur any other material liability, obligations in connection with the Debt Financing; (iv) would cause any director, officer or employee or stockholder of Seller or any of its Subsidiaries to incur any personal liability; (v) would conflict with the organizational documents of Seller or any of its Subsidiaries or any Laws; (vi) would reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which Seller or any of its Subsidiaries is a party; (vii) would require Seller, any of its Subsidiaries or any of their respective Representatives to provide access to or disclose information that Seller or any of its Subsidiaries determines would jeopardize any attorney-client privilege of Seller or any of its Subsidiaries; (viii) would require Seller or any of its Subsidiaries or any of their respective Representatives to prepare any financial statements or information that are not available to Seller and prepared in the ordinary course of its financial reporting practice; or (ix) would unreasonably interfere with the ongoing operations of Seller or any of its Subsidiaries. Nothing contained in this Section 6.16, 5.17 or otherwise shall require (A) Seller or any of its Subsidiaries (other than the Transferred Entities) to be an issuer or other obligor with respect to the Debt Financing or any Alternative Financing(B) the Transferred Entities to be an issuer or other obligor with respect to the Debt Financing prior to the Closing. Purchaser shall shall, promptly upon request by Seller, reimburse Seller for all reasonable out-of-pocket costs incurred by Seller or its Subsidiaries or their respective Representatives in connection with the Financing such cooperation and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and its Subsidiaries and their respective directors, officers, employees and representatives Representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing Debt Financing, any action taken by them pursuant to this Section 5.17 and any information used in connection therewith (other than information provided in writing by Seller or its Subsidiaries specifically in connection with its obligations pursuant to this Section 5.17).
(d) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.17 represent the sole obligation of Seller, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including any Debt Financing) to be obtained by Purchaser with respect to the transactions contemplated by this Agreement and no other provision of this Agreement shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including any Debt Financing) by Purchaser or any of its respective Affiliates or any other financing or other transactions be a condition to any of Purchaser’s obligations under this Agreement. Notwithstanding anything to the contrary herein, the failure of Seller or any of its Affiliates (or any Alternative Financingof their respective Representatives) and to comply with the provisions set forth in this Section 5.17 shall not be taken into account in determining whether any information utilized condition to the Closing set forth in connection therewithArticle VII shall have been satisfied.
Appears in 1 contract
Financing Cooperation. (a) Purchaser The Company shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver and shall cause the Company Subsidiaries and each of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions their respective Representatives to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its their reasonable best efforts to obtain as promptly as possible alternative to, provide, on a timely basis, all cooperation reasonably requested by Buyer or Buyer Parent in connection with the financing of the transaction contemplated by this Agreement under Buyer Parent’s existing credit facilities or any other definitive debt financing (including from other sourcesdebt securities) sought by Buyer or Buyer Parent (in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Priceeach case, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an a “Alternative Financing”), including (i) providing access to or promptly furnishing reasonably requested financial and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations other information with respect to the Financing Company and the Company Subsidiaries, in each case, that are required for the Financing, (ii) reasonable and customary assistance with marketing efforts and diligence related to the Financing, including inventory appraisals and field audits with respect to the Acquired Entities (at the sole cost and expense of Buyer), (iii) executing and delivering customary definitive financing documents including any pledge and security documents, guarantee and collateral documents and any other definitive financing documents as may be reasonably requested by Buyer in connection with the Financing; provided that (A) none of the foregoing documents or certificates shall be executed and/or delivered except in connection with the Closing, (B) the effectiveness thereof shall be conditioned upon, or become operative after or concurrently with, the occurrence of the Closing and (C) no liability shall be imposed on any Seller or any of their respective officers or employees, and (iv) at least three Business Days prior to the Closing, delivery to Buyer or Buyer Parent of documentation and other information is requested in writing by Buyer or Buyer Parent at least 10 days prior to the Closing and to the extent required by regulatory entities under this Section 6.16(a) shall also apply applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and regulations with respect to any Alternative beneficial ownership. The Company hereby consents to the use of its and the Company Subsidiaries’ logos in connection with such Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” such logos are used solely in a manner that is less favorable to Purchaser than not intended to, nor reasonably likely to, harm or disparage the “market flex” provisions contained in Company or the Debt Commitment Letter and Fee Letter in force as of the date hereofCompany Subsidiaries (including their reputation or goodwill).
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and Company shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using use reasonable best efforts to timely:cause to be prepared and deliver to Buyer, no later than (i) 90 days following the end of each fiscal year (commencing with the fiscal year ended May 31, 2024), the audited consolidated balance sheets of the Company as of the end of such fiscal year and the related audited consolidated statements of income, stockholders’ equity and cash flows for such fiscal year and (ii) 45 days following the end of each fiscal quarter (commencing with the first fiscal quarter ended after the date hereof), the unaudited consolidated balance sheets of the Company as of the end of such fiscal quarter and the related unaudited consolidated statements of income, stockholders’ equity and cash flows for such fiscal quarter (clauses (i) and (ii), collectively, the “Additional Financial Information”), which Additional Financial Information shall be prepared in accordance with the Company’s past practices for preparing financial statements of Acquired Entities. If any of the Additional Financial Information has not been completed as of the dates set forth above, the Company and Buyer shall cooperate in good faith for Buyer to be assigned the engagement with the auditor conducting the audits thereof with respect to such Additional Financial Information, and Buyer shall use reasonable best efforts to cause the Additional Financial Information to be completed as promptly as practicable.
(c) Notwithstanding anything in Section 6.15(a), none of the Acquired Entities shall be required to (i) pay or agree to pay any commitment or other fee or payment or cause or permit any Lien to be placed on any of their respective assets prior to the Closing in connection with any Financing, (ii) incur any liability or give any indemnity in connection with any Financing prior to the Closing, (iii) execute prior to the Closing any definitive debt financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with any Financing, except for any execution of documents that are conditioned upon the Closing, (iv) take any corporate actions prior to the Closing to permit the consummation of any Financing (except for any corporate actions that are conditioned upon the Closing), (v) make any certifications that it does not reasonably in good faith believe to be true, (vi) take any action that would require any director, officer or employee of the Acquired Entities to execute any document, agreement, certificate or instrument that would be effective prior to the Closing (other than customary authorization letters), (vii) take any action that would unreasonably interfere with the ongoing business or operation of the Acquired Entities, (viii) take any action that would conflict with or violate the organizational documents of the Acquired Entities, any Material Contract to which any Acquired Entity is party or Applicable Law or (i) cause senior management and other appropriate employees any director, officer or employee of the Business Acquired Entities to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
incur any personal liability or (ii) assist cause the directors or managers of the Acquired Entities to adopt resolutions approving the agreements, documents and instruments pursuant to which any Financing is obtained unless Buyer shall have determined that such directors and managers are to remain as directors and managers of the Acquired Entities on and after the Closing Date and such resolutions are contingent upon the occurrence of, or only effective as of, the Closing.
(d) Notwithstanding any other provision set forth herein or in any other agreement between the Parties (or their respective Affiliates), Sellers and Acquired Entities agree that Buyer, Buyer Parent and their respective Affiliates may share any information with respect to the preparation of materials Acquired Entities with their financing sources (including business projections and similar materialspotential financing sources) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall recipients of such information and any other information contemplated to be provided by Company or any of its Affiliates pursuant to this Section 6.15 agree to customary confidentiality arrangements, including “click through” confidentiality agreements and confidentially provisions contained in customary bank books and offering memoranda.
(e) In no event include shall Buyer’s obligation to consummate the Closing be conditioned on the receipt of any “Management’s Discussion Financing.
(f) The Company shall use reasonable best efforts to cause the financing statements or other evidence of Liens set forth in Section 6.15(f) of the Disclosure Schedule to be terminated (and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to deliver customary evidence thereof to Buyer) prior to the Business;Closing.
(ivg) assist At or prior to the Closing, the Company shall use reasonable best efforts to terminate, unwind and fully discharge, with no remaining post-Closing Liabilities or obligations owed to or by any Acquired Entity thereunder, all Hedging Arrangements to which any Acquired Entity is a party.
(h) Notwithstanding anything to the contrary in obtaining accountants’ comfort letters and auditor’s reports in respect this Agreement, for all purposes of audited financials this Agreement (including consents of accountants for use of their reposts the condition set forth in any materials relating Section 9.01(b)(ii) as it applies to the Financing or any Alternative FinancingCompany’s obligations under this Section 6.15) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund Company’s obligations under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group this Section 6.15 shall be required to pay any commitment or other fee, or incur any other material liability, in connection with deemed satisfied unless (A) the Company has materially breached its obligations under this Section 6.166.15, (B) Buyer has notified the Financing Sellers, Seller Representative or any Alternative the Company of such material breach in writing and the Company fails to cure such breach within 10 Business Days following receipt of such notice and (C) such material breach was a proximate cause of Buyer’s failure to obtain the Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewith.
Appears in 1 contract
Sources: Stock Purchase Agreement (Performance Food Group Co)
Financing Cooperation. (a) Purchaser From and after the date hereof until the earlier of the Closing Date and the termination of this Agreement pursuant to Section 9.1, Seller shall and shall cause the Company Entities to use each of their respective commercially reasonable best efforts to consummate provide to Buyer, at the sole expense of Buyer, customary information and take other customary actions as are reasonably requested by Buyer in connection with the Debt Financing, which shall include, using commercially reasonable efforts to:
(i) at least three (3) Business Days prior to Closing (to the extent requested from the Company Entities at least seven (7) Business Days prior to the anticipated Closing), providing all documentation and other information about the Company Entities as is reasonably requested by Buyer which the sources in respect of the Debt Financing on reasonably determine is required with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the terms USA PATRIOT Act and conditions that is required as a condition precedent to the initial funding of the Debt Financing;
(ii) facilitate the execution of the Payoff Letters;
(iii) facilitate the execution and delivery at the Closing of definitive documents reasonably related to the Debt Financing, including any guarantees, pledge and security documents, other definitive financing documents (in each case including the schedules thereto), or in connection with the authorization of the Debt Financing and the definitive documentation related thereto, and the execution and delivery of such definitive documentation in anticipation of the Closing (provided that all such authorization, execution and delivery shall be deemed to become effective only if and when the Closing occurs; and provided, further that the Company Entities shall not be required to deliver or cause the delivery of any legal opinions);
(iv) provide reasonable assistance to Buyer in its preparation of the Marketing Materials;
(v) exercise commercially reasonable efforts to cooperate with the Marketing Efforts of Buyer; and
(vi) provide reasonable assistance in identifying any portion of the information relating to the Seller and its Subsidiaries (including the Company Entities) set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party Marketing Materials relating to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination Financing that would constitute material non-public information.
(b) Seller hereby consents to the use of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation logos of the Financing or reduces Company Entities in connection with the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment LetterMarketing Efforts; provided, however, that Purchaser may terminate such logos are used (i) in a manner that is not intended to, or reasonably likely not to, disparage the Company Entities or its reputation or goodwill or (ii) in any manner as reasonably approved by Seller.
(c) All such assistance referred to in this Section 6.14 in connection with the Debt Commitment Letter so long Financing shall be at Buyer’s written request with reasonable prior notice and except as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of provided herein, at Buyer’s sole cost and expense, and ▇▇▇▇▇ shall promptly reimburse Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that or its Affiliates for all or any portion of the Financing becomes unavailable on the terms costs and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing expenses (including from other sourcesattorneys’ fees) incurred by them and their respective personnel and non-legal advisors in an amount connection with such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financingassistance; provided, however, that Purchaser such reimbursement under this Section 6.14(c) shall not apply to, and Buyer shall not be obligated to agree to the utilization responsible for, (x) costs and expenses incurred, regardless of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the ClosingFinancing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser whether in connection with the Financing (satisfaction of obligations solely under other provisions of this Agreement or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall would have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs been incurred in connection with the Financing and transactions contemplated hereby or otherwise, or (y) any Alternative Financing, including such costs amounts incurred in connection with compliance with Section 6.14the Payoff Letters or the Financial Statements. Purchaser Buyer shall indemnify indemnify, defend and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses damages, liabilities or losses suffered or incurred arising from the financial statements prepared and delivered or the cooperation provided by Seller, the Company Entities and any of them in connection with the arrangement of the Financing (their Affiliates or any Alternative Financing) of their personnel or non-legal advisors pursuant to this Section 6.14 (other than as set forth in this Section 6.14(c)), except to the extent such liabilities arise from actual fraud or willful misconduct of Seller or their Affiliates or any of their respective Representatives and any information utilized in connection therewith.
(d) Notwithstanding the foregoing or anything else to the contrary in this Agreement, neither Seller nor the Company Entities (or any of their Affiliates or any of their personnel or advisors) shall be required to (i) provide or prepare, and Buyer shall be solely responsible for the preparation of, pro forma financial information, including pro forma costs savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financing information, (ii) pay any commitment or other fee, (iii) provide Regulation S-X compliant financial statements, (iv) enter into any agreement or commitment in connection with the Debt Financing which would be effective prior to the Closing (other than customary authorization letters), (v) approve any document or other matter related to the Debt Financing or incur any Liability of any kind (or cause their Representatives to incur any Liability of any kind) prior to the Closing, except to the extent reimbursable or indemnified by Buyer hereunder(other than as required under Section 6.13(b)), (vi) provide any opinion, (vii) provide access to or disclose any information to Buyer or its Representatives to the extent such disclosure would jeopardize the attorney-client privilege, attorney work product protections or other evidentiary privilege or protection or violate any applicable Law or Contract, (viii) execute or deliver any Real Estate Deliveries, (ix) with respect to any Third Party Assurance, arrange for the issuance of replacement letters of credit, surety bonds or similar instruments, backstop letters of credit or other assurance or post cash collateral to the issuer with respect thereto or (x) take any action that would (A) unreasonably interfere with the day-to-day operations of the Company Entities or cause material competitive harm to the business of the Company Entities if the transaction contemplated by this Agreement are not consummated, (B) cause any representation, warranty, covenant, agreement or other provision in this Agreement or any Transaction Document to be untrue, incorrect, breached or violated in any respect, (C) cause any closing condition set forth in Article VII to fail to be satisfied, (D) cause the Company Entities or any director, manager, officer or employee of the Company Entities to incur any personal Liability, (E) conflict with the Governing Documents of the Company Entities or any Law or Permit, (F) result in the contravention of, a violation or breach of, or a default under, any Contract, (G) change any fiscal period, or (H) authorize any corporate or similar action prior to the Closing.
(e) Notwithstanding anything to the contrary contained herein, (i) this Section 6.14 sets forth Seller’s and the Company Entities’ sole obligations with respect to the Debt Financing or any other debt or other financing of Buyer or any of its Affiliates and (ii) Seller and the Company Entities will be deemed to be in compliance with this Section 6.14 for all purposes hereunder, and Buyer shall not allege that Seller (or any other Person) is or has not been in compliance with this Section 6.14 for any purpose hereunder, unless both (A) Buyer provides prompt written notice to Seller of the alleged failure to comply, specifying in reasonable detail such alleged failure, which failure to comply has not been cured within ten (10) Business Days of such notice and (B) Seller’s willful breach of this Section 6.14 was the primary and direct cause of the failure of the Debt Financing to be obtained on or before the Termination Date.
Appears in 1 contract
Financing Cooperation. (a) Purchaser Subject to Section 6.10(c) and Section 6.10(d), from and after the date of this Agreement, and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VIII, if requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub (including providing, subject to the subsequent sentence, reasonably available financial and other pertinent information regarding the Company and the Company Subsidiaries for use reasonable best efforts in usual and customary marketing and offering documents and to consummate the Financing on the terms and conditions set forth enable Parent to prepare pro forma financial statements required by SEC rules or Parent’s financing sources) in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization arrangement of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, bank debt financing or any purported termination of the Debt Commitment Letter. Purchaser shall notcapital markets debt financing, without the prior written consent of Seller, (x) permit in each case for any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results purpose in new (or adversely modifies any existing) conditions to connection with the consummation of the Financing Merger and the other transactions contemplated hereby, including without limitation for the purposes of financing any amounts that may become due in respect of the indebtedness of the Company and the Company Subsidiaries as of the Closing pursuant to change-of-control provisions or reduces the amount thereof, or otherwise (y) terminate, or take any action that would permit the termination ofcollectively, the “Debt Commitment Letter; providedRefinancing”), however, it being understood that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained Refinancing may involve increases in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all size of or availability under any portion of the Financing becomes unavailable debt obligations or facilities of the Company or the Company Subsidiaries. Notwithstanding the foregoing, the Company shall only be required to provide audited financial statements for the three fiscal years preceding the commencement of the marketing of any Debt Refinancing and unaudited financial statements for any subsequent fiscal quarter (it being understood and agreed that the availability of the Company’s financial statements on the terms and conditions set forth in the Debt Commitment Letter SEC’s ▇▇▇▇▇ system shall satisfy such requirement and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent Company shall not be unreasonably withheld), include required to provide any conditions financial statements prior to the consummation end of the applicable deadline to file such alternative financing that are not substantially financial statements with the same as SEC with the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), Company’s annual and (2quarterly reports) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser Company shall not be obligated required to agree to the utilization provide any standalone financial statements of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereofSubsidiary.
(b) Prior Subject to the Closing, and, with respect to clause (ivSection 6.10(c) of this and Section 6.16(b6.10(d), prior to from and after the Closingdate of this Agreement, Seller and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VIII, if reasonably requested by Parent, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary, proper or advisable under (x) the indentures listed in Section 3.18(b)(ii) of the Company Disclosure Letter and (y) the credit agreements listed in Section 3.18(b)(ii) of the Company Disclosure Letter (collectively, “Existing Debt Documents”) in respect of the transactions contemplated by this Agreement. Subject to Section 6.10(c) and Section 6.10(d), from and after the date of this Agreement, and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VIII, if and to the extent reasonably requested by Parent in writing, the Company shall provide commercially reasonable cooperation to Parent and Merger Sub in either (A) arranging for the termination of Existing Debt Documents (and the related repayment or redemption thereof), which repayment or redemption shall be the sole responsibility, cost and expense of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith or (B) obtaining any Consents required under any Existing Debt Documents to permit the consummation of the transactions contemplated by this Agreement as may be reasonably requested by Parent, and if reasonably requested by Parent, the Company shall, and shall cause the other members Company Subsidiaries to, execute and deliver such customary notices, agreements, documents or instruments necessary in connection therewith.
(c) Notwithstanding anything in this Section 6.10 to the contrary, in no event shall the Company be required in connection with its obligations under this Section 6.10 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 Seller Group foregoing unless Parent provides the funding to the Company therefor in advance, (iii) amend or otherwise modify or agree to amend or otherwise modify any Existing Debt Document, which amendment or other modification is not conditioned on the Closing, (iv) incur any potential or actual liability or provide any indemnities in connection therewith or otherwise related to the Debt Refinancing prior to the Closing Date unless contingent upon the occurrence of the Closing, (v) take any actions that would unreasonably interfere with or unreasonably disrupt the normal operations and management of the Company and the Company Subsidiaries, (vi) take any actions that the Company reasonably believes could (A) violate its or the Company 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 the Company Subsidiaries or to a loss of any benefit to which the Company or the Company 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 the Company 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 the Company Subsidiaries, (x) fund any repayment, repurchase or redemption prior to the Closing, (xi) result in any of the Company’s or any of the Company Subsidiaries’ Representatives incurring any personal liability with respect to any matters relating to this Section 6.10, (xii) execute, deliver or enter into, or perform any agreement, document or instrument, including any definitive financing agreement, with respect to the Debt Refinancing that is not contingent upon the Closing or that would be effective prior to Closing, (xiii) be responsible for preparing any pro forma financial statements, (xiv) pass resolutions or consents, approve or authorize the execution of or take any other corporate action with respect to the Debt Refinancing that is not contingent on the Closing or that would be effective prior to the Closing or (xv) provide or cause its legal counsel to provide any legal opinions.
(d) Parent shall promptly, upon written request by the Company, (i) reimburse the Company and any of its Affiliates and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources Representatives for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable and all out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, expenses (including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify attorneys’ and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or accountants’ fees) incurred by any of them in connection with the arrangement cooperation required pursuant to this Section 6.10 and (ii) defend, indemnify and hold harmless the Company, the Company Subsidiaries and its and 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 Financing (cooperation required pursuant to this Section 6.10 or any Alternative Financing) and any information utilized in connection therewith. Notwithstanding this Section 6.10 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 Refinancing, payoff, amendments or other related or similar actions described in this Section 6.10 be obtained.
(e) Notwithstanding anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 7.03(b), as applied to the Company’s obligations under this Section 6.10, shall be deemed to be satisfied unless the Debt Refinancing has not been obtained as a result of the Company’s willful breach of its obligations under this Section 6.10.
Appears in 1 contract
Sources: Merger Agreement (Marubeni Corp /Fi)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller Company shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) Subsidiaries to, use reasonable best efforts to provide to Purchaser Parent and Merger Sub, at Parent’s sole expense, all cooperation, on a timely basis, as cooperation reasonably requested by Purchaser Parent that is customary or necessary in connection with obtaining financing in connection with the Financing Merger (or any Alternative Financingso long as such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), which cooperation shall include using including, upon the reasonable best efforts to timely:
request of Parent, (i) cause preparing and furnishing to Parent any pertinent information relating to the Company and its Subsidiaries that is customarily included in an information package used in connection with the syndication of financing in connection with transactions similar to the Merger, (ii) having the Company designate members of senior management and other appropriate employees of the Business to participate with reasonable advance notice and at reasonable times in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating ratings agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financingsuch financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser providing to Parent the resolutions of the Company Board approving this Agreement, the Merger and the relevant financing sources non-financial information transactions contemplated hereby, and recommending the adoption of this Agreement by the stockholders of the type required under Company. Notwithstanding anything to the Securities Act and contrary in this Section 6.13 until the Effective Time occurs, neither the Company nor any of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitionsits Subsidiaries, to consummate nor any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information respective Representatives shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(ivi) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or incur have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other material liability, agreement or document related to the financing in connection with this Section 6.16the transactions contemplated hereby, in each case that is not contingent upon the Financing Closing, (iii) be required to incur any expenses in connection with such financing or (iv) be required to take any action in his or her capacity as a director of the Company or any Alternative Financingof its Subsidiaries with respect to such financing. Purchaser Parent shall promptly reimburse Seller the Company for all reasonable and documented out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the Financing their respective obligations pursuant to, and any Alternative Financingin accordance with, including such costs incurred in connection with compliance with this Section 6.14. Purchaser 6.13, and shall indemnify and hold harmless Sellerthe Company, the other members of the Seller Group its Subsidiaries and their respective directors, officers, employees and representatives Representatives from and against any and all Losses damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of Parent’s financing and any information used in connection therewith (other than information provided by the Financing Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 6.13. Parent shall keep the Company reasonably informed, on a reasonably current basis in reasonable detail of the status of Parent’s financing (or any Alternative Financing) and alternative or other contemplated financing for the transactions contemplated by this Agreement), including any information utilized material change in connection therewithParent’s plans or intentions as previously notified, regarding such financing.
Appears in 1 contract
Sources: Merger Agreement (International Rectifier Corp /De/)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to consummate occur of the Financing on the terms and conditions set forth in the Debt Commitment Letter termination of this Agreement pursuant to Article VIII and the Fee Letter (which reasonable best efforts Effective Time, the Company shall, and shall include agreeing to cause its Subsidiaries and the utilization Company’s and its Subsidiaries’ Representatives to, at Parent’s sole expense, reasonably cooperate in connection with the arrangement of any “market flex” provisions contained thereinfinancing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by this Agreement as may be reasonably requested by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries). Such cooperation by the Company shall include, including using at the reasonable best efforts to request of Parent:
(i) negotiate and agreeing to enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligationsagreements, and to use its reasonable best efforts to enforce deliver such officer’s certificates, as are customary in financings of such type and as are, in the good faith determination of the persons executing such officer’s certificates, accurate, and agreeing to pledge, grant security interests in, and otherwise grant liens on, the Company’s and its rightsmaterial Subsidiaries’ assets pursuant to such agreements as may be reasonably requested;
(ii) providing to any lender that is providing any financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by this Agreement financial and other information relevant to such financing in the Company’s or its Subsidiaries’ possession or that is reasonably available or that the Company or its Subsidiaries prior to the date hereof in the ordinary course of business would have produced (and in accordance with the timeframe in which such information would have been produced) (including audited and unaudited financial statements as of and for periods both before and after the date hereof, under provided that such financial statements shall be provided in a manner as is consistent with the Debt Commitment Letter and Company’s existing practices), assisting in the Fee Letter. Purchaser shall give Seller prompt notice preparation of any material breach pro forma financial information or projections, making the Company’s and its Subsidiaries’ senior officers available at reasonable times and for a reasonable number of meetings to assist any lender that is providing any financing that Parent and Acquisition Sub may raise in connection with the transactions contemplated by any party to the Debt Commitment Letter this Agreement (including by way of which Purchaser has become awareparticipation in meetings, or any purported termination of the Debt Commitment Letter. Purchaser shall notpresentations, without the prior written consent of Sellermarketing sessions and due diligence sessions), (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results and otherwise reasonably cooperating in new (or adversely modifies any existing) conditions to connection with the consummation of the Financing or reduces the amount thereof, or any such financing;
(yiii) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its using reasonable best efforts to obtain as promptly as possible alternative financing from the Company’s and its Subsidiaries’ accounting firm accountants’ comfort letters and consents customary for debt financings, and assisting Parent and its counsel with information required for customary legal opinions required to be delivered in connection therewith and cooperating in obtaining any necessary valuations;
(including from iv) furnishing all documentation and other sources) in an amount such information about the Company and its Subsidiaries that the aggregate potential financing available to Purchaser sources have reasonably determined is equal to required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations;
(v) taking all corporate, limited liability company, partnership or other similar actions by the Purchase Price, which alternative financing shall be on terms Company and its Subsidiaries that are no less favorable reasonably necessary to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to permit the consummation of such alternative the necessary financing; and
(vi) using reasonable best efforts to cooperate with Parent to satisfy any conditions precedent to any financing that are not substantially the same as the conditions to the Financing set forth extent within the control of the Company and its Subsidiaries. Parent shall promptly reimburse the Company for any out-of-pocket expenses and costs reasonably incurred in connection with the Debt Commitment Letter Company’s or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s its Affiliates’ obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof).
(b) Prior Notwithstanding anything in this Agreement to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timelycontrary:
(i) cause senior management and other appropriate employees nothing in this Agreement shall require any cooperation to the extent that it would require the board of directors of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing Company or any Alternative Financingof its Subsidiaries to take any action or the Company or any of its Subsidiaries or Representatives, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitionsas applicable, to consummate waive or amend any offering terms of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such informationAgreement, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required agree to pay any commitment or other fee, fees or incur reimburse any other material liability, expenses prior to the Effective Time (for which the Company is not promptly reimbursed by Parent) or to approve the execution or delivery of any document or certificate in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred financing that Parent and Acquisition Sub may raise in connection with the Financing and transactions contemplated by this Agreement;
(ii) no officer of the Company or any Alternative Financing, including such costs incurred of its Subsidiaries who is not reasonably expected to be an officer of the Surviving Corporation shall be obligated to deliver any certificate in connection with compliance with Section 6.14. Purchaser shall indemnify any financing that Parent and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them Acquisition Sub may raise in connection with the arrangement transactions contemplated by this Agreement and no counsel for the Company or any of its Subsidiaries shall be obligated to deliver any opinion in connection with any such financing; and
(iii) irrespective of the Financing (above, no obligation of the Company or any Alternative Financingof its Subsidiaries under any certificate, document or instrument (other than the authorization letters referred to above) shall be effective until the Effective Time and none of the Company or any information utilized in connection therewithof its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including entry into any agreement that is effective before the Effective Time or distribution of any cash by or to the Company that is effective before the Effective Time) or that would be effective prior to the Effective Time.
Appears in 1 contract
Financing Cooperation. (a) Purchaser From and after the date hereof until the earlier of the Closing Date and the termination of this Agreement pursuant to Section 9.1, Seller shall and shall cause the Company Entities to use each of their respective commercially reasonable best efforts to consummate provide to Buyer, at the sole expense of Buyer, customary information and take other customary actions as are reasonably requested by Buyer in connection with the Debt Financing, which shall include, using commercially reasonable efforts to:
(i) at least three (3) Business Days prior to Closing (to the extent requested from the Company Entities at least seven (7) Business Days prior to the anticipated Closing), providing all documentation and other information about the Company Entities as is reasonably requested by Buyer which the sources in respect of the Debt Financing on reasonably determine is required with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the terms USA PATRIOT Act and conditions that is required as a condition precedent to the initial funding of the Debt Financing;
(ii) facilitate the execution of the Payoff Letters;
(iii) facilitate the execution and delivery at the Closing of definitive documents reasonably related to the Debt Financing, including any guarantees, pledge and security documents, other definitive financing documents (in each case including the schedules thereto), or in connection with the authorization of the Debt Financing and the definitive documentation related thereto, and the execution and delivery of such definitive documentation in anticipation of the Closing (provided that all such authorization, execution and delivery shall be deemed to become effective only if and when the Closing occurs; and provided, further that the Company Entities shall not be required to deliver or cause the delivery of any legal opinions);
(iv) provide reasonable assistance to Buyer in its preparation of the Marketing Materials;
(v) exercise commercially reasonable efforts to cooperate with the Marketing Efforts of Buyer; and
(vi) provide reasonable assistance in identifying any portion of the information relating to the Seller and its Subsidiaries (including the Company Entities) set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party Marketing Materials relating to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination Financing that would constitute material non-public information.
(b) Seller hereby consents to the use of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation logos of the Financing or reduces Company Entities in connection with the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment LetterMarketing Efforts; provided, however, that Purchaser may terminate such logos are used (i) in a manner that is not intended to, or reasonably likely not to, disparage any of the Company Entities or their reputation or goodwill or (ii) in any manner as reasonably approved by Seller.
(c) All such assistance referred to in this Section 6.14 in connection with the Debt Commitment Letter so long Financing shall be at Buyer’s written request with reasonable prior notice and except as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of provided herein, at Buyer’s sole cost and expense, and ▇▇▇▇▇ shall promptly reimburse Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that or its Affiliates for all or any portion of the Financing becomes unavailable on the terms costs and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing expenses (including from other sourcesattorneys’ fees) incurred by them and their respective personnel and non-legal advisors in an amount connection with such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financingassistance; provided, however, that Purchaser such reimbursement under this Section 6.14(c) shall not apply to, and Buyer shall not be obligated to agree to the utilization responsible for, (x) costs and expenses incurred, regardless of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the ClosingFinancing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser whether in connection with the Financing (satisfaction of obligations solely under other provisions of this Agreement or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall would have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs been incurred in connection with the Financing and transactions contemplated hereby or otherwise, or (y) any Alternative Financing, including such costs amounts incurred in connection with compliance with Section 6.14the Payoff Letters or the Financial Statements. Purchaser Buyer shall indemnify indemnify, defend and hold harmless Seller, the other members BlackRock Member and each of the Seller Group and their respective directors, officers, employees and representatives Affiliates from and against any and all Losses damages, liabilities or losses suffered or incurred arising from the financial statements prepared and delivered or the cooperation provided by Seller, the BlackRock Member, each Company Entity and any of them in connection with the arrangement of the Financing (their respective Affiliates or any Alternative Financing) of their personnel or non-legal advisors pursuant to this Section 6.14 (other than as set forth in this Section 6.14(c)), except to the extent such liabilities arise from actual fraud or willful misconduct of Seller or their Affiliates or any of their respective Representatives and any information utilized in connection therewith.
(d) Notwithstanding the foregoing or anything else to the contrary in this Agreement, neither Seller nor any Company Entity (or any of their Affiliates or any of their personnel or advisors) shall be required to (i) provide or prepare, and Buyer shall be solely responsible for the preparation of, pro forma financial information, including pro forma costs savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financing information, (ii) pay any commitment or other fee, (iii) provide Regulation S-X compliant financial statements, (iv) enter into any agreement or commitment in connection with the Debt Financing which would be effective prior to the Closing (other than customary authorization letters), (v) approve any document or other matter related to the Debt Financing or incur any Liability of any kind (or cause their Representatives to incur any Liability of any kind) prior to the Closing, except to the extent reimbursable or indemnified by Buyer hereunder (other than as required under Section 6.13(b), (vi) provide any opinion, (vii) provide access to or disclose any information to Buyer or its Representatives to the extent such disclosure would jeopardize the attorney-client privilege, attorney work product protections or other evidentiary privilege or protection or violate any applicable Law or Contract, (viii) execute or deliver any Real Estate Deliveries, (ix) with respect to any Third Party Assurance, arrange for the issuance of replacement letters of credit, surety bonds or similar instruments, backstop letters of credit or other assurance or post cash collateral to the issuer with respect thereto or (x) take any action that would (A) unreasonably interfere with the day-to-day operations of any Company Entity or cause material competitive harm to the business of any Company Entity if the transaction contemplated by this Agreement are not consummated, (B) cause any representation, warranty, covenant, agreement or other provision in this Agreement or any Transaction Document to be untrue, incorrect, breached or violated in any respect, (C) cause any closing condition set forth in Article VII to fail to be satisfied, (D) cause any Company Entity or any director, manager, officer or employee of any Company Entity to incur any personal Liability, (E) conflict with the Governing Documents of Company Entity or any Law or Permit, (F) result in the contravention of, a violation or breach of, or a default under, any Contract, (G) change any fiscal period, or (H) authorize any corporate or similar action prior to the Closing.
(e) Notwithstanding anything to the contrary contained herein, (i) this Section 6.14 sets forth Seller’s and the Company Entities’ sole obligations with respect to the Debt Financing or any other debt or other financing of Buyer or any of its Affiliates and (ii) Seller and the Company Entities will be deemed to be in compliance with this Section 6.14 for all purposes hereunder, and Buyer shall not allege that Seller (or any other Person) is or has not been in compliance with this Section 6.14 for any purpose hereunder, unless both (A) Buyer provides prompt written notice to Seller of the alleged failure to comply, specifying in reasonable detail such alleged failure, which failure to comply has not been cured within ten (10) Business Days of such notice and (B) Seller’s willful breach of this Section 6.14 was the primary and direct cause of the failure of the Debt Financing to be obtained on or before the Termination Date.
Appears in 1 contract
Financing Cooperation. (a) Purchaser Prior to the Closing, Parent shall use reasonable best efforts to consummate provide, and shall use its reasonable best efforts to cause the Financing on the terms Transferred Entity and conditions set forth in the Debt Commitment Letter its and the Fee Letter (Transferred Entity’s Representatives to provide, in each case, at Buyer’s sole cost and expense, with such cooperation and assistance as is customary or reasonably requested by Buyer in connection with any proposed Debt Financing, which reasonable best efforts shall include agreeing to (without limiting the utilization generality of any “market flex” provisions contained therein), including using reasonable best efforts to the foregoing):
(i) negotiate facilitating the pledging of collateral and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in provision of guarantees supporting the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, required for closing under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party Definitive Agreements related to the Debt Commitment Letter Financing, including assisting with the preparation of which Purchaser has become aware, or any purported termination of a perfection certificate and other customary documents relating to the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser no pledge or guarantee shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to effective until the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agencyproviding such corporate resolutions, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management certificates and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser documents and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents corporate authorizations as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate Buyer in connection with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Debt Financing; provided, howeverthat no such certificates, that neither Seller nor any resolutions and other member documents shall be effective until the Closing;
(iii) the delivery, at least four (4) Business Days prior to the Closing Date (to the extent requested from Parent at least eight (8) Business Days prior to the Closing Date), of all documentation and other information about Parent and the Transferred Entity as is reasonably requested in writing by ▇▇▇▇▇ (including on behalf of the Seller Group Debt Financing Sources) and required to be delivered pursuant to applicable “beneficial ownership,” “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation (31 C.F.R. § 1010.230); provided, that, notwithstanding anything in this Agreement to the contrary, none of Parent, the Transferred Entity or their respective Representatives shall (a) have any liability or obligation under any Definitive Agreements until the Closing has occurred; (b) be required to pay take any commitment action that will unreasonably and materially disrupt the ordinary conduct of the business or other feeoperations of Parent or the Transferred Entity; (c) be required to pass resolutions or consents, approve or authorize the execution of, or incur execute any document, agreement, certificate or instrument or take any other material liability, in connection corporate action with respect to the Debt Financing that is not contingent on the Closing or that would be effective prior to the Closing; (d) be required to take any action pursuant to this Section 6.165.21 to the extent any such action would reasonably be expected to result in personal liability to any director, manager, officer or employee of Parent or the Financing Transferred Entity; (e) be required to prepare or be required to deliver any financial statements other than as Parent would deliver in respect of the Business in the ordinary course of business or consistent with past practice; (f) be required to take any action that will conflict with or violate any legal requirements or result in the contravention of, or would reasonably be expected to result in a violation or breach of, or default under, any Law (in each case prior to the Closing); or (g) be required to cause the delivery of any legal opinions or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with authorization letters by Parent or the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser Transferred Entity.
(b) Buyer shall indemnify and hold harmless SellerParent, the other members Transferred Entity and each of the Seller Group and their respective directors, officers, employees and representatives Representatives from and against any and all liabilities or Losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing (or and any Alternative Financing) cooperation provided pursuant to this Section 5.21 and any information utilized in connection therewiththerewith (other than to the extent such losses or liabilities arose out of the bad faith, gross negligence or willful misconduct or the information so provided by Parent or any of its Representatives). Additionally, Buyer shall, promptly upon written request by ▇▇▇▇▇▇, reimburse it for all reasonable and documented out-of-pocket costs, fees and expenses (including reasonable attorneys’ fees) to the extent such costs, fees and expenses are incurred by Parent or any of its Affiliates, in connection with any such party complying with the obligations under this Section 5.21.
(c) Parent hereby consents to the use of its and the Transferred Entity’s trademarks and logos in connection with the Debt Financing; provided, that such trademarks and logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Parent or the Transferred Entity or the reputation or goodwill of the Parent or the Transferred Entity.
(d) Parent will be deemed to be in compliance with this Section 5.21, and Buyer shall not allege that Parent is or has not been in compliance with this Section 5.21, unless and until ▇▇▇▇▇ provides written notice of the alleged failure to comply specifying in reasonable detail specific steps to cure such alleged failure in a commercially reasonable and practical manner (or to the extent such breach may not be so cured), which substantial steps to cure such failure to comply have not been taken within five (5) Business Days after receipt of such written notice.
Appears in 1 contract
Sources: Equity Purchase Agreement (Matthews International Corp)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect the Company shall use commercially reasonable efforts to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser Parent all cooperation, on a timely basis, as cooperation reasonably requested by Purchaser Parent in connection with the arrangement, syndication and consummation of any debt financing (the “Debt Financing” and the financing sources in respect thereof, the “Debt Financing (or any Alternative FinancingSources”), which cooperation shall include using reasonable best efforts to timelyas determined by Parent in good faith, including, but not limited to, the following:
(i) cause senior management and other appropriate employees of the Business request its independent accountants to participate in a provide reasonable number of meetings, presentations, road shows, due diligence sessions and sessions assistance to Parent consistent with rating agencies on reasonable advance noticetheir customary practice;
(ii) assist with the preparation of materials (including business projections execute and similar materials) for rating agencydeliver any credit agreements, lender notes, guarantee and investor presentations, offering collateral documents, private placement memorandahedging arrangements, bank information and syndication memorandapay-off letters, prospectusesother definitive financing documents, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information a certificate of the type required under the Securities Act and chief financial officer or treasurer (or other comparable officer) of type and form customarily included in private placements of debt securities under Rule 144A any member of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood Company that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver will be effective at the Closing certifying the solvency, after giving effect to the Closing, of such member of the Company on a consolidated basis and other customary certificates or other documents as may be reasonably requested by Parent or any Debt Financing Source and otherwise reasonably facilitating the relevant financing sourcespledging of collateral; provided, that no such documentation shall be effective until immediately after the Closing;
(iii) take such other actions as reasonably requested by Parent to facilitate the satisfaction on a timely basis of all the conditions precedent to the Debt Financing; and
(viiiv) otherwise reasonably cooperate with providing all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the marketing efforts of Purchaser USA PATRIOT Act, to the extent required by any Debt Financing and its financing sources for requested at least five (5) Business Days prior to Closing, as determined by Parent in good faith.
(b) Notwithstanding anything to contrary contained in Section 5.9(a), in no event shall the Company or any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall its Subsidiaries be required to (1) bear any cost or expense, pay any commitment or other fee, or incur any other material liability, in connection with this Section 6.16, the Financing actual or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred potential liability in connection with the Debt Financing and prior to the Effective Time for which it is not reimbursed or is not otherwise indemnified by or on behalf of Parent, (2) take any Alternative Financingactions to the extent such actions would unreasonably interfere with their respective ongoing business or operations, including (3) take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under any of their respective organizational documents or any applicable laws or any other material contracts to which such costs incurred Person is a party, (4) become an issuer or other obligor with respect to the Debt Financing prior to the Closing Date, (5) pledge any assets or collateral, execute any definitive agreement in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members respect of the Seller Group and their respective directorsDebt Financing or any closing certificate or other agreement, officers, employees and representatives from and against or incur any and all Losses suffered liability or incurred by any of them indebtedness in connection with the arrangement Debt Financing prior to the Closing Date, or (6) execute or deliver, or take any corporate or other action to adopt or approve, any document, agreement, certificate or instrument with respect to the Debt Financing that will be effective before the Closing Date.
(c) Each of Parent and Merger Subsidiary acknowledges and agrees that (i) its obligations under this Agreement to consummate the Financing (transactions contemplated by this Agreement, including, without limitation, the Merger, shall not be conditioned in any respect on Parent’s and/or Merger Subsidiary’s receipt of proceeds from, or any Alternative other aspect of, the Debt Financing) and any information utilized in connection therewith.
Appears in 1 contract
Sources: Merger Agreement (Connecture Inc)
Financing Cooperation. (a) Purchaser Prior to the Closing, the Company shall provide, and shall cause its Subsidiaries and each of their respective Representatives to, furnish to Parent at least three (3) Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and 31 C.F.R. §1010.230, relating to the Company or any of its Subsidiaries, in each case as reasonably requested by Parent at least ten (10) Business Days prior to the Closing Date. Prior to the Closing, the Company shall use its reasonable best efforts to provide, and shall cause its Subsidiaries and each of their respective Representatives to use reasonable best efforts to consummate provide, customary cooperation, to the Financing on extent reasonably requested by Parent in writing, in each case to the terms and conditions set forth in extent necessary for the arrangement of the Debt Commitment Letter and Financing (provided that such requested cooperation does not unreasonably interfere with the Fee Letter (which reasonable best efforts shall include agreeing to ongoing business operations of the utilization Company or any of any “market flex” provisions contained thereinits Affiliates), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) participate (and cause senior management and other appropriate employees of the Business Company, with appropriate seniority and expertise, to participate participate) in a reasonable number of meetingsmeetings (including meetings with existing or prospective Debt Financing Sources), presentations, road shows, due diligence sessions and sessions with rating agencies on agencies, at reasonable times and with reasonable advance notice, and in each case which shall be virtual unless otherwise agreed to by the Company;
(ii) assist with to the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with extent required by the Financing or any Alternative Debt Financing, including to cause management facilitate the pledging of, granting security interest in and other personnel to participate in related drafting sessionsobtaining perfection of security interests in, collateral, effective no earlier than the Closing;
(iii) furnish Purchaser to Parent historical financial statements and other information regarding the relevant financing sources non-financial information of the type Company customarily required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed connection with the SEC) (such information, together execution of financings of a type similar to the Debt Financing and reasonably requested by Parent in connection with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist facilitate in obtaining accountants’ comfort letters the taking of all corporate and auditor’s reports in respect other similar actions, subject to and contingent upon the occurrence of audited financials the Closing, necessary to permit the consummation of the Debt Financing on the Closing Date; it being understood that (including consents of accountants for use of their reposts in any materials relating A) no such corporate or other action will take effect prior to the Financing Closing and (B) any such corporate or any Alternative Financing) other action will only be required of the directors, members, partners, managers or officers of the Company and its Subsidiaries who retain their respective positions as reasonably requested by Purchaserof and following the Closing;
(v) assist Purchaser in satisfying provide reasonable and customary assistance with the conditions to fund under preparation of customary marketing materials, including any bank information memoranda, confidential information memoranda, marketing materials, lender presentations and similar documents reasonably requested by Parent or the Debt Commitment LetterFinancing Sources in connection with the Debt Financing;
(vi) execute or obtain take action and deliver at notices of prepayment or termination (within the Closing time periods required by the Company Credit Agreement) (which notices may be conditioned on the occurrence of the Closing) to the extent such action and notices are required under the Company Credit Agreement, in addition to action required by Section 6.18;
(vii) cooperate with the Debt Financing Sources’ due diligence, to the extent customary and reasonable; and
(viii) assist in the preparation of, and in the execution and delivery of, the Definitive Agreements (including one or more credit agreements, security agreements, mortgages and/or guarantees and the schedules and exhibits thereto) in connection with the Debt Financing and other customary certificates or other documents and back-up certificate for legal opinions in connection with the Debt Financing as may reasonably be reasonably requested by Parent as required in connection with the relevant financing sources; andDebt Financing, in each case, subject to the occurrence of, the Closing.
(viib) The foregoing notwithstanding, none of the Company nor any of its Affiliates shall be required to take or permit the taking of any action pursuant to this Section 6.14 that could: (i) require the Company or any of its Affiliates or any persons who are officers or directors of such entities to pass resolutions or consents to approve or authorize the execution of the Debt Financing or enter into, execute or deliver any certificate, document, instrument or agreement with respect to the Debt Financing that is not contingent upon the Closing, other than any prepayment and termination notices required to be delivered pursuant to the Company Credit Agreement (provided that the Company will, to the extent otherwise reasonably cooperate with required hereby, use reasonable best efforts to cause the marketing efforts persons who will continue as a director, manager or officer of Purchaser and its financing sources for any of the Financing Company or its Subsidiaries following the consummation of the transactions contemplated hereby to pass resolutions and to execute documents in their capacities as such officers, directors or managers, in each case, which resolutions and documents are subject to and conditioned upon, and do not become effective until, the occurrence of Closing), (ii) cause any representation or warranty in this Agreement to be breached by the Company or any Alternative Financing; providedof its Affiliates, however, that neither Seller nor (iii) require the Company or any other member of the Seller Group shall be required its Affiliates to pay any commitment or other fee, similar fee or incur any other material liabilityexpense, liability or obligation in connection with this Section 6.16the Debt Financing (except to the extent the effectiveness of any such fee, expense, liability or obligation is subject to and conditioned upon the Financing occurrence of Closing), (iv) reasonably be expected to cause any director, officer, employee or stockholder of the Company or any Alternative of its Affiliates to incur any personal liability, (v) reasonably be expected to conflict with the organizational documents of the Company or any of its Subsidiaries, or any Laws, (vi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any Material Contract to which the Company or any of its Subsidiaries is a party, (vii) provide access to or disclose information that the Company or any of its Affiliates determine would jeopardize any attorney-client privilege, (viii) require the delivery of any opinion of counsel, (ix) require the Company or any of its Affiliates to provide projections, pro forma financial statements or pro forma adjustments related to the Debt Financing (provided, that this clause (ix) shall not relieve the Company from any obligation hereunder to provide Parent with information necessary to permit Parent to prepare a pro forma consolidated balance sheet and related pro forma financial statements as required in connection with the Debt Financing as is customarily required in connection with financings of a type similar to the Debt Financing), (x) require the Company or any of its Affiliates to, prepare any financial statements or information that are not available to the Company and prepared in the ordinary course of the Company’s financial reporting practice or (xi) require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Purchaser shall Parent shall, promptly on written request by the Company, reimburse Seller the Company or any of its Affiliates for reasonable all reasonable, documented and invoiced out-of-pocket costs incurred by them or their respective Representatives in connection with fulfilling their obligations pursuant to this Section 6.14 and Section 6.19 (limited to a reasonable, documented and invoiced out-of-pocket attorneys’ fees of single outside counsel); provided, that the Company, and not Parent, shall be responsible for (i) fees, costs and expenses incurred in connection with the preparation of historical financial statements that are or would be prepared in the ordinary course of business regardless of the Debt Financing and (ii) any Alternative Financingordinary course amounts payable to existing employees of the Company and its Subsidiaries and their respective Representatives with respect to services provided prior to Closing. Parent shall reimburse, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group Company and its Affiliates and their respective directors, officers, employees and representatives Representatives from and against any and all Losses losses suffered or incurred by them in connection with the fulfilling their obligations pursuant to this Section 6.14 and Section 6.19, except in the event such losses arose out of or resulted from fraud, or willful breach of this Agreement by the Company or any of them its Subsidiaries, any of their Affiliates or any Representatives of any of the foregoing, as determined in a final and non-appealable judgment by a court of competent jurisdiction.
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 6.14 represent the sole obligation of the Company and its Affiliates and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Financing Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement and the Commitment Letters, and no other provision of this Agreement (including the Exhibits and Schedules hereto) or the Commitment Letters shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Financing) by Parent or any Alternative Financingof its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Company’s or its Subsidiaries’ breach of any of the covenants required to be performed by it under this Section 6.14 shall not be considered in determining the satisfaction of the condition set forth in Section 7.2(b), unless such breach is a willful breach and is the cause of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) The Company hereby consents to the use of its and any information utilized its Subsidiaries’ logos in connection therewithwith the Debt Financing; provided that such logos are used solely in a manner that is not reasonably likely to harm or disparage the Company or its Subsidiaries in any respect.
(e) All non-public or otherwise confidential information regarding the Company or any of its Affiliates obtained by Parent or its Representatives pursuant to this Section 6.14 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that notwithstanding anything to the contrary in the Confidentiality Agreement, Parent shall be permitted to disclose (i) information as consistent with customary practices in connection with the Debt Financing and (ii) information to any other financial institutions and investors with respect to any equity financing in connection with the Merger and the transactions contemplated hereby (and, in each case, to their respective counsel) so long as such Persons (x) agree to be bound by confidentiality provisions substantially similar to those in the Confidentiality Agreement as if parties thereto, or (y) are subject to other confidentiality undertakings reasonably satisfactory to the Company.
Appears in 1 contract
Sources: Merger Agreement (Premier, Inc.)
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller Company shall, and shall cause the other members of the Seller Group its Subsidiaries to, and its and shall use commercially reasonable efforts to cause their respective officersrepresentatives to, employees and advisors (including legal counsel and accountants) toat Parent’s sole expense, provide to Purchaser all cooperation, on a timely basis, as Parent such cooperation reasonably requested by Purchaser Parent that is customary in connection with Parent’s efforts to obtain the Debt Financing (provided that such requested cooperation is consistent with applicable Law and does not unreasonably interfere with the operations of the Company or any Alternative Financingof its Subsidiaries), which cooperation shall include using reasonable best efforts to timely:
including: (i) cause furnishing Parent and its Debt Financing Sources as promptly as practicable with unaudited consolidated balance sheets and related statements of income, stockholders’ equity, and cash flows of the Company and its Subsidiaries, for each fiscal quarter ended after the date of the Most Recent Financial Statements but at least forty (40) calendar days before the Closing Date (collectively, the “Required Information”); (ii) making members of senior management with appropriate seniority and other appropriate employees of the Business to participate in expertise available (including by conference call) for a reasonable number of meetings, presentations, road shows, and due diligence sessions sessions; (iii) providing all information reasonably requested by Parent or the Debt Financing Sources regarding the Company and sessions with rating agencies on reasonable advance notice;
its Subsidiaries under applicable “know your customer,” anti-terrorism and anti-money laundering rules and regulations, including the Beneficial Ownership Regulation and the USA PATRIOT Act of 2001, at least five (ii5) assist business days prior to the Closing Date, in each case, requested at least ten (10) Business Days prior to the Closing Date; (iv) assisting with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents Documents as may be reasonably requested by Parent; provided that no obligation of the relevant financing sourcesCompany or any of its Subsidiaries under any such documentation shall be effective until the Closing (other than as set forth in any authorization letter with respect to the Debt Financing); and
and (viiv) otherwise reasonably cooperate with assisting Parent and the marketing efforts Debt Financing Sources in the preparation of Purchaser bank information memoranda (including, to the extent necessary, an additional bank information memorandum that does not include material non-public information and its financing sources executing customary authorization letters) for any of the Debt Financing to the extent reasonably requested by Parent. None of the Company or any Alternative Financing; provided, however, that neither Seller nor of its respective Subsidiaries or any other member of the Seller Group their respective representatives shall be required required, under the provisions of this Section 4.8(a) or otherwise in connection with the Debt Financing (x) to pay any commitment or other fee, similar fee prior to the Closing that is not advanced by Parent or (y) to incur any other material liability, in connection with this Section 6.16, expense unless such expense is promptly reimbursed by Parent following written request by the Financing or any Alternative FinancingCompany. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser Parent shall indemnify the Company and hold harmless Seller, the other members of the Seller Group its respective Subsidiaries and their respective directors, officers, employees and representatives from and against any and all Losses losses, damages, awards, fines, penalties, expenses, fees, costs and amounts paid in settlement in accordance with this Agreement (including reasonable fees and reasonable expenses of counsel) suffered or incurred by them in connection with (1) any action taken by them at the request of them Parent pursuant to this Section 4.8 or in connection with the arrangement of the Debt Financing or (or any Alternative Financing2) and any information utilized in connection therewith, except to the extent arising from (i) information provided by or on behalf of the Company or its Affiliates or (ii) the bad faith, willful misconduct or gross negligence of the Company or its Affiliates. Nothing contained in this Section 4.8 or otherwise shall require the Company to be an issuer or other obligor with respect to the Debt Financing prior to the Closing and, until the Closing occurs, neither the Company nor its Subsidiaries nor their respective representatives shall (1) be required to take any action that will conflict with or violate their respective certificate of incorporation, by-laws or comparable organizational documents or any Laws or orders or (2) be required to pass resolutions or consents, approve or authorize the execution of, or execute any document, agreement, certificate or instrument or take any other corporate action with respect to the Debt Financing that is not contingent on the Closing or that would be effective prior to the Closing Date (other than customary authorization letters as described in clause (v) above).
(b) All material, non-public information regarding the Company and its Subsidiaries provided to Parent or its respective representatives pursuant to this Section 4.8 shall be kept confidential by them in accordance with Section 9.11(b), except for disclosure to Debt Financing Sources and potential Debt Financing Sources as required in connection with the Debt Financing subject to customary confidentiality protections.
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Sources: Agreement and Plan of Merger (Forrester Research, Inc.)
Financing Cooperation. (a) Purchaser Buyer shall use use, and cause its Affiliates to use, its commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper and advisable to consummate and obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein)Letter, including using commercially reasonable best efforts to (i) maintain in effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, (ii) satisfy all conditions and covenants applicable to Buyer in the Debt Commitment Letter, (iii) negotiate and enter into all definitive agreements with respect to the Debt Financing consistent with on the terms and conditions set forth contained in the Debt Commitment Letter and the Fee Letter and Letter, (iiiv) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are applicable to be satisfied by Purchaser. Purchaser shall comply with Buyer and consummate the Debt Financing at or prior to the Closing, including using its obligations, and use (or causing its Affiliates to use) reasonable best efforts to cause SVB to fund the Debt Financing, (v) enforce its rights, rights under the Debt Commitment Letter in the event of a material breach thereof by the debt financing provider(s) thereunder (provided that Buyer shall not be required to commence any Action against such debt financing provider) and (vi) comply with its obligations under the Fee Debt Commitment Letter.
(b) Buyer shall keep Seller informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to Seller copies of all executed definitive documents related to the Debt Financing. Purchaser Without limiting the generality of the foregoing, Buyer shall give Seller prompt notice (and in any event, within two (2) Business Days) Written notice: (i) of any material default or breach (or any event that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any default or breach) by any party to the Debt Commitment Letter or definitive document related to the Debt Financing of which Purchaser has become Buyer or its Affiliates becomes aware, (ii) of the receipt of any Written notice or other communication from any Person with respect to any (A) actual or potential default, breach, termination or repudiation by any party to the Debt Commitment Letter or any purported termination definitive document related to the Debt Financing of any provisions of the Debt Commitment Letter or any definitive document related to the Debt Financing or (B) dispute or disagreement between or among any parties to the Debt Commitment Letter or any definitive document related to the Debt Financing, and (iii) if for any reason Buyer has determined in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter. Purchaser As soon as reasonably practicable, but in any event, within three (3) days following delivery by Seller to Buyer of Written request therefor, Buyer shall not, without the prior written consent of Sellerprovide any information reasonably requested by Seller relating to any circumstance referred to in clause (i), (xii) or (iii) of the immediately preceding sentence.
(c) Buyer shall not permit any amendment or modification to be made to, or consent to any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter Letter, if such amendment, modification, modification or waiver or remedy results in new (or adversely modifies any existingi) conditions to reduces the consummation aggregate amount of the Debt Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained contemplated in the Debt Commitment Letter to an aggregate amount less than $30,000,000, (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all ii) imposes new or additional conditions or otherwise expands, amends or modifies any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the receipt of the Debt Financing set forth in a manner adverse to Buyer or the Target Companies, (iii) amends or modifies any other term of the Financing Letters in a manner that would reasonably be expected to delay or prevent the Closing or (iv) adversely impacts the ability of Buyer to enforce its rights against the other parties to the Debt Commitment Letter Letter. Any reference in this Agreement to (x) “Debt Financing” shall include the financing contemplated by the Financing Letters as amended or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”modified in compliance with this Section 6.19(c), and (2y) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and its and their respective officers, employees and advisors (including legal counsel and accountants) to, provide to Purchaser all cooperation, on a timely basis, as reasonably requested by Purchaser in connection with the Financing (or any Alternative Financing), which cooperation shall include using reasonable best efforts to timely:
(i) cause senior management and other appropriate employees of the Business to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies on reasonable advance notice;
(ii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials and similar documents in connection with the Financing or any Alternative Financing, including to cause management and other personnel to participate in related drafting sessions;
(iii) furnish Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act and of type and form customarily included in private placements of debt securities under Rule 144A of the Securities Act or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statements, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative Financing, the “Required Information”); provided, however, that the Required Information shall in no event include any “Management’s Discussion and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;
(iv) assist in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute ” shall include such document as amended or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate with the marketing efforts of Purchaser and its financing sources for any of the Financing or any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required to pay any commitment or other fee, or incur any other material liability, modified in connection compliance with this Section 6.16, the Financing or any Alternative Financing. Purchaser shall reimburse Seller for reasonable out-of-pocket costs incurred in connection with the Financing and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or any Alternative Financing) and any information utilized in connection therewith6.19(c).
Appears in 1 contract
Financing Cooperation. (a) Purchaser shall use reasonable best efforts to consummate the Financing on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter (which reasonable best efforts shall include agreeing to the utilization of any “market flex” provisions contained therein), including using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions to the Financing set forth in such definitive agreements that are to be satisfied by Purchaser. Purchaser shall comply with its obligations, and use its reasonable best efforts to enforce its rights, under the Debt Commitment Letter and the Fee Letter. Purchaser shall give Seller prompt notice of any material breach by any party to the Debt Commitment Letter of which Purchaser has become aware, or any purported termination of the Debt Commitment Letter. Purchaser shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification, waiver or remedy results in new (or adversely modifies any existing) conditions to the consummation of the Financing or reduces the amount thereof, or (y) terminate, or take any action that would permit the termination of, the Debt Commitment Letter; provided, however, that Purchaser may terminate the Debt Commitment Letter so long as the Debt Commitment Letter is being simultaneously replaced with alternative financing arrangements on terms that are no less favorable to the interests of Seller than the terms contained in the Debt Commitment Letter (which alternative financing arrangements shall thereafter constitute the Financing hereunder). In the event that all or any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter and the Fee Letter, regardless of the reason therefor, Purchaser shall (1) use its reasonable best efforts to obtain as promptly as possible alternative financing (including from other sources) in an amount such that the aggregate financing available to Purchaser is equal to the Purchase Price, which alternative financing shall be on terms that are no less favorable to the interests of Purchaser than the terms contained in the Debt Commitment Letter and the Fee Letter and shall not, without the consent of Seller (which consent shall not be unreasonably withheld), include any conditions to the consummation of such alternative financing that are not substantially the same as the conditions to the Financing set forth in the Debt Commitment Letter or otherwise be materially less favorable to the interests of Seller (any such alternative financing, an “Alternative Financing”), and (2) promptly notify Seller of such unavailability and the reason therefore. Purchaser’s obligations with respect to the Financing under this Section 6.16(a) shall also apply to any Alternative Financing; provided, however, that Purchaser shall not be obligated to agree to the utilization of any “market flex” that is less favorable to Purchaser than the “market flex” provisions contained in the Debt Commitment Letter and Fee Letter in force as of the date hereof.
(b) Prior to the Closing, and, with respect to clause (iv) of this Section 6.16(b), prior to and after the Closing, Seller shall, and shall cause the other members of the Seller Group and shall use its and their respective officers, employees and advisors (including legal counsel and accountants) to, commercially reasonable efforts to provide such cooperation to the Purchaser all cooperation, on a timely basis, as may reasonably be requested by the Purchaser in connection with obtaining the Debt Financing (or any Alternative Financing)necessary to complete the transactions contemplated hereby, which cooperation shall include using including using, and causing its Affiliates and representatives to use, commercially reasonable best efforts to timely:
(i) cause senior management furnish to the Purchaser and other appropriate employees the Debt Financing Sources information, financial statements and financial data relating to the Business of the Business to form and type customarily used in offering memoranda for financing engagements of the type contemplated by the Debt Commitment Letter (including the Marketing Information), (ii) participate in a reasonable number (and in any event not less than 2) of requested meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies on reasonable advance notice;
in connection with the Debt Financing, (iiiii) assist with the preparation of materials (including business projections and similar materials) for rating agency, lender and investor agency presentations, offering documents, private placement memoranda, bank information and syndication memoranda, prospectuses, marketing materials memoranda and similar documents reasonably required in connection with the Financing or any Alternative Debt Financing, including (iv) request the independent accountants of the Seller to cause management provide reasonable assistance to the Purchaser in connection with the Debt Financing consistent with their customary practice, (v) facilitate the execution and delivery at the Closing of the Debt Financing Agreements, (vi) provide all documentation and other personnel information that is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, in each case, at least four (4) Business Days prior to participate the anticipated Closing Date, to the extent reasonably requested in related drafting sessions;
writing at least nine (iii9) furnish Business Days prior to the Closing Date, (vii) provide in form and substance reasonably acceptable to the Purchaser and the relevant financing sources non-financial information of the type required under the Securities Act Debt Financing Sources payoff letters and/or lien releases and of type and form customarily included terminations with respect to any Indebtedness to be repaid in private placements of debt securities under Rule 144A of the Securities Act connection with, or registered offerings of debt securities under the Securities Act by strategic acquirors of businesses otherwise not permitted hereunder to finance such acquisitions, to consummate any offering of securities contemplated by the Financing (it being understood that Purchaser shall have the right to include the information provided by Seller under this clause (iii) and the other Required Information in a current report filed with the SEC) (such information, together with the Audited Business Financial Statementsremain outstanding upon, the Quarterly Financial Statements, the Monthly Financial Reports, any replacements or restatements thereof and supplements thereto, and, in the case of the Audited Business Financial Statements, the auditors’ report thereon, and including consents of accountants for use of their reports in any materials relating to the Financing or any Alternative FinancingClosing (collectively, the “Required InformationPayoff Letters and Lien Terminations”), (viii) ensure that there shall be no competing offering, placement or arrangement of any debt securities or syndicated credit facilities with respect to the Business, (ix) ensure that the syndication of the Debt Financing benefits from the existing lending relationships of the Business and (x) cooperate reasonably with the Debt Financing Sources’ due diligence, to the extent customary and reasonable. Without limiting the foregoing, the Seller shall promptly deliver the Updated Financial Statements to the Purchaser; provided, however, that the Required Information shall in no event include any “Management’s Discussion if and Analysis”, “Compensation Discussion and Analysis” or similar disclosure related to the Business;extent that the 2017 Audited Financial Statements and the Updated Financial Statements for the fiscal quarter ending March 31, 2018 are delivered after May 11, 2018, the Trigger Date shall be extended one day for each day after May 11, 2018 until the day that the 2017 Audited Financial Statements and the Updated Financial Statements for the fiscal quarter ending March 31, 2018 are delivered to the Purchaser, provided, that if any such extended date is not a Business Day, then the Trigger Date shall be extended to the next Business Day after such date.
(ivb) assist Notwithstanding the foregoing, (i) nothing contained in obtaining accountants’ comfort letters and auditor’s reports in respect of audited financials (including consents of accountants for use of their reposts in any materials relating this Section 5.15 shall require cooperation with the Purchaser to the Financing or any Alternative Financing) as reasonably requested by Purchaser;
(v) assist Purchaser in satisfying the conditions to fund under the Debt Commitment Letter;
(vi) execute or obtain and deliver at the Closing other customary certificates or other documents as may be reasonably requested by the relevant financing sources; and
(vii) otherwise reasonably cooperate extent it would interfere unreasonably with the marketing efforts Business or operations of Purchaser and its financing sources for the Seller, encumber any of the Financing or assets of any Alternative Financing; provided, however, that neither Seller nor any other member of the Seller Group shall be required or require any member of the Seller Group to pay any commitment or other feefee or make any other payment in connection with the Debt Financing (unless simultaneously reimbursed by the Purchaser pursuant to the terms of this Agreement), result in a breach of any contract in effect as of the date hereof, or impose any liability on any member of the Seller Group or any of their respective Affiliates and (ii) no member of the Seller Group or any Affiliate of any member of the Seller Group or any of their respective directors, officers or employees shall (A) be required to take any action in the capacity as a member of the board of directors or managers or as an officer of the Seller, (B) have any liability or any obligation under any Debt Financing Agreement or any other agreement or document related to the Debt Financing or (C) be required to incur any other material liability, liability in connection with this Section 6.16, the Financing or any Alternative Debt Financing. .
(c) The Purchaser shall promptly, upon request by the Seller, reimburse the Seller for any reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees, reasonable independent accountants’ fees and $35,000 in independent accountants’ fees incurred in preparing the Updated Financial Statements) incurred by any member of the Seller Group in connection with the Financing cooperation contemplated by this Section 5.15 and any Alternative Financing, including such costs incurred in connection with compliance with Section 6.14. Purchaser shall indemnify and hold harmless Seller, the other members of the Seller Group and their respective directors, officers, employees and representatives from for and against any and all Losses suffered or incurred by any of them in connection with the arrangement of the Financing (or Debt Financing, any Alternative Financing) action taken by them at the request of the Purchaser pursuant to this Section 5.15 and any information utilized in connection therewiththerewith (other than information provided by any member of the Seller Group or any Affiliate of any member of the Seller Group).
Appears in 1 contract