Financing; Financing Cooperation. (a) Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be deemed to be in breach of the covenant set forth in this Section 7.22 so long as Seller has acted in good faith to comply with the cooperation and assistance set forth in this Section 7.22. Purchaser shall use its reasonable best efforts to take, and to cause to be taken, all actions and to do, and to cause to be done, all things necessary to arrange the Financing on the terms and subject to the conditions described in the Financing Commitment Letters (including the “flex” provisions therein) and shall not permit any amendment, supplement or modification to be made to, or any waiver by Purchaser of any provision or remedy under the Financing Commitment Letters, if such amendment, supplement, modification or waiver would (i) reduce the aggregate amount of net cash proceeds of the Financing as compared to the amount of such aggregate net cash proceeds contemplated by the Financing Commitment Letters as in effect on the date of this Agreement or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Financing in a manner that would (1) prevent, impede or delay the funding of the Financing or the consummation of the transactions contemplated by this Agreement or (2) adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Financing Commitment Letters. Purchaser shall promptly deliver to Seller copies of any amendment, supplement, modification or waiver to the Financing Commitment Letters. Without limiting the generality of the foregoing and except to the extent that Purchaser has completed an offering of debt or equity securities whose net cash proceeds replace amounts that were to be provided under the Financing Commitment Letters and which will be available to Purchaser for Closing, Purchaser shall use its reasonable best efforts to (i) maintain in effect the commitments under the Financing Commitment Letters until the consummation of the transactions contemplated by this Agreement, (ii) negotiate and enter into definitive agreements contemplated by the Financing Commitment Letters on terms and conditions (including, as applicable, the “flex” provisions) no less favorable to Purchaser than those contained in the Financing Commitment Letters, (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except to the extent that Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction of the conditions set forth in the Financing Commitment Letters consummate the Financing at or prior to Closing. Purchaser shall keep Seller reasonably informed of the status of its efforts to arrange the Financing (or replacement thereof) as Seller may reasonably request, and shall provide Seller with copies of all definitive documents related to the Financing and, as Seller may reasonably request from time to time, drafts of such documents posted to a lender syndicate group, provided that the fee letters may be redacted. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice (x) of any material breach or default by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of which Purchaser becomes aware, (y) of the receipt of any notice or other communication, in each case, from any Financing source with respect to any (1) material breach of any of its obligations under the Financing Commitment Letters or default, termination or repudiation by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any of the Financing Commitment Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing and (z) if at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions and in the manner or from the sources contemplated by any of the Financing Commitment Letters or definitive agreements related to the Financing. (b) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitment Letters (including the “flex” provisions), Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources subject to conditions that are not materially less favorable in the aggregate to Purchaser than those set forth in the Financing Commitment Letters, in an amount sufficient when combined with other available cash resources to consummate the Acquisition and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources, provided that any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Financing as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected to cause any delay of the consummation of the transactions contemplated hereby. In such event, the term “Financing Commitment Letter” as used herein shall be deemed to include the new commitment letter entered into in accordance with this Section 7.22(b). Purchaser shall provide Seller with a copy of any new financing commitment letters obtained by Purchaser in connection with any such alternate financing as promptly as practicable following the execution thereof (other than redacted information consistent with the information redacted from the Fee Letters).
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Raymond James Financial Inc), Stock Purchase Agreement (Regions Financial Corp)
Financing; Financing Cooperation. (a) Notwithstanding anything contained in this Agreement Parent shall, to the contraryextent the proceeds thereof are required to consummate the transactions contemplated hereby, Purchaser acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be deemed to be in breach of the covenant set forth in this Section 7.22 so long as Seller has acted in good faith to comply with the cooperation and assistance set forth in this Section 7.22. Purchaser shall use its reasonable best efforts to take, and to or cause to be taken, all actions and to do, and to or cause to be done, all things necessary or advisable to arrange the Debt Financing and to consummate the Debt Financing on the terms and subject to the conditions described in the Financing Commitment Letters (including the “flex” provisions therein) and Closing Date. Such actions shall not permit any amendment, supplement or modification to be made to, or any waiver by Purchaser of any provision or remedy under the Financing Commitment Letters, if such amendment, supplement, modification or waiver would (i) reduce the aggregate amount of net cash proceeds of the Financing as compared to the amount of such aggregate net cash proceeds contemplated by the Financing Commitment Letters as in effect on the date of this Agreement or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Financing in a manner that would (1) prevent, impede or delay the funding of the Financing or the consummation of the transactions contemplated by this Agreement or (2) adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Financing Commitment Letters. Purchaser shall promptly deliver to Seller copies of any amendment, supplement, modification or waiver to the Financing Commitment Letters. Without limiting the generality of the foregoing and except to the extent that Purchaser has completed an offering of debt or equity securities whose net cash proceeds replace amounts that were to be provided under the Financing Commitment Letters and which will be available to Purchaser for Closing, Purchaser shall use its include using reasonable best efforts to to: (i) maintain in effect the commitments Debt Commitment Letter (except as otherwise permitted in the definition of Financing Failure Event) until the transactions contemplated by this Agreement are consummated or this Agreement is terminated in accordance with its terms; (ii) cause senior management of Parent to participate in, and assist with, the preparation of rating agency presentations and meetings with rating agencies; (iii) satisfy on a timely basis (or, if deemed advisable by Parent, seek a waiver on a timely basis of) all Financing Conditions within its control; (iv) negotiate, execute and deliver Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions related thereto) or on such other terms no less favorable to Parent than those set forth in the Debt Commitment Letter; and (v) in the event that the conditions set forth in Section 6.1 and Section 6.2 and the Financing Conditions have been satisfied or, upon funding would be satisfied, enforce Parent’s rights under the Debt Commitment Letter in the event of a Financing Failure Event that prevents, impedes or delays the Closing. Parent shall use reasonable best efforts to give the Company prompt notice of any material breach or repudiation by any Financing Sources to the Debt Commitment Letters until Letter of which Parent obtains knowledge.
(b) Without limiting Parent’s other obligations under Section 5.17(a), if a Financing Failure Event occurs, Parent shall (i) promptly notify the Company of such Financing Failure Event and the reasons therefor, (ii) use reasonable best efforts to obtain alternative financing from alternative financing sources, in an amount sufficient, together with any other sources of funds available to Parent or Merger Sub (including cash and cash equivalents held by Parent and the Company and the proceeds of available lines of credit under existing revolving credit facilities or Parent), to consummate the transactions contemplated by this Agreement, as promptly as reasonably practicable following the occurrence of such Financing Failure Event (provided, however, that Parent shall not be required to obtain alternative financing which includes terms and conditions materially less favorable (taking into account any “market flex” provision), in the aggregate, to Parent, in each case relative to those in the Debt Financing being replaced) and (iii) obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing subject only to the Financing Conditions. Neither Parent nor any of its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace any of the Debt Commitment Letter or any definitive document relating to the Debt Financing; provided, however, that, notwithstanding the foregoing, Parent and its Affiliates shall be permitted to amend, modify, supplement, restate, assign, substitute, replace or terminate any of the Debt Commitment Letter or any definitive document relating to the Debt Financing if the effect of such amendment, modification, supplement, restatement, assignment, substitution, replacement or termination would not impose new or additional conditions or otherwise expand, amend or modify any of the Financing Conditions or other terms in a manner that would reasonably be expected to materially delay, impair or prevent the consummation of the transactions contemplated by this Agreement; provided, (ii) negotiate and enter into definitive agreements contemplated by further, that the Financing Parent may amend the Debt Commitment Letters on terms and conditions (includingLetter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as applicable, the “flex” provisions) no less favorable to Purchaser than those contained in the Financing Commitment Letters, (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except to the extent that Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction of the conditions set forth in the Financing Commitment Letters consummate the Financing at or prior to Closingdate of this Agreement so long as such parties are creditworthy. Purchaser Parent shall keep Seller the Company reasonably informed of as to the status of its Parent’s efforts to arrange the Debt Financing.
(c) Prior to the Closing, the Company will, and will cause its Representatives to, use reasonable best efforts to provide to Parent all cooperation and take all corporate action required, as reasonably requested by Parent in connection with the arrangement, marketing and consummation of the Debt Financing (or replacement thereofprovided, however, that such requested cooperation does not unreasonably interfere in any material respect with the ongoing operations of the Company), including using reasonable best efforts to: (i) deliver to Parent such historical financial information regarding the Company as Seller may be reasonably requestrequested by Parent and that is customarily required for the Debt Financing, including (A) the financial statements referred to in Exhibit C to the Debt Commitment Letter, which financial statements need not be delivered prior to such financial statements being filed with the SEC on ▇▇▇▇▇ (provided that such financial statements are filed with the SEC on a timely basis) and such filing shall constitute delivery and (B) any other pertinent information as may be reasonably requested by Parent to enable Parent to prepare, and shall provide Seller to reasonably cooperate with copies of all definitive documents related to Parent and the Financing andSources in the preparation of, as Seller may reasonably request from time to time, drafts customary pro forma financial statements of such documents posted to a lender syndicate groupParent that meet the requirements of Regulation S-X under the Securities Act and all other accounting rules and regulation of the SEC promulgated thereunder, provided that the fee letters may be redacted. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice (x) of any material breach or default by any party the Company’s obligation to any of provide information for such pro forma financial statements shall be limited to information about the Financing Commitment Letters or definitive agreements related to the Financing of which Purchaser becomes aware, Company and its Subsidiaries and (y) Parent and Merger Sub shall be solely responsible for the preparation of pro forma financial statements, including any adjustments incorporated into any such pro forma financial statements; (ii) to the receipt extent customarily required for the Debt Financing, make appropriate officers available to participate in a reasonable number of any notice or other communicationmeetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, Financing Sources and prospective Financing Sources, in each case, upon reasonable notice and at mutually agreeable dates and times; (iii) provide reasonable assistance (including using reasonable best efforts to obtain such materials or documents from the Company Representatives) in the preparation of customary offering documents, including customary bank information memoranda, authorization letters, lender presentations, rating agency materials, registration statements, prospectuses, offering memoranda, and private placement memoranda (including information required by Regulation S-X or Regulation S-K under the Securities Act (which, for the avoidance of doubt, shall not include financial statements or information required by Rules 3-05, 3-09, 3-10 or 3-16 of Regulation S-X or information required by Item 402 of Regulation S-K or any information that the Company is not required to prepare and file with the SEC, but would include such other information and data as are otherwise reasonably necessary in order to receive customary “comfort” letters with respect to the financial statements and data referred to in clause (i) above)); (iv) if reasonably requested in writing by Parent at least ten (10) Business Days prior to the anticipated Closing, furnish at least four (4) Business Days prior to the Closing Date to Parent all customary and reasonable information regarding the Company that is required by regulatory authorities in connection with the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; (v) assist Parent in obtaining corporate, corporate family, credit, facility and securities ratings from rating agencies; (vi) provide (including using reasonable best efforts to obtain such documents from the Company Representatives) customary certificates, definitive documents, pay-off letters, “10b-5” representation letters and other customary documentation and items relating to the Debt Financing as reasonably requested by Parent and, if requested by Parent, to cooperate with and assist Parent in obtaining such documentation and items; provided, however, that no obligation of the Company under any agreement, certificate, document or instrument (other than any “10b-5” representation letter) shall be effective until the Closing; (vii) use reasonable best efforts to cause the independent accountants of the Company to provide assistance and cooperation in connection with the Debt Financing, including (1) participating in a reasonable number of drafting sessions and accounting due diligence sessions, (2) providing customary consents to use their audit reports relating the Company and (3) providing customary “comfort” (including “negative assurance” comfort) letters; and (viii) reasonably cooperate with the marketing efforts for any portion of the Debt Financing, including using its commercially reasonable efforts to ensure that any syndication effort benefits from any existing lending relationships. Notwithstanding the foregoing, nothing in this Agreement shall require the Company or any of its Representatives to (1) enter into any Contract, take any corporate action or otherwise agree to pay any fees, reimburse any expenses or otherwise incur any actual or potential liability (other than immaterial out-of-pocket expenses that shall be subject to reimbursement by Parent as set forth below), (2) take any action that would reasonably be expected to conflict with or violate the Company Charter or the Company Bylaws or any Law or result in the breach of any Contract, (3) execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing or provide any legal opinion in connection with the Debt Financing source or any other debt offering or (4) provide any information subject to attorney-client privilege, attorney work product protection or other legal privilege. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company (other than with respect to any (1costs associated with preparing regular quarterly and annual financial statements) in performing their obligations under this Section 5.17, and indemnify the Company and its directors, officers, employees and other Representatives for any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Debt Financing other than to the extent any of the foregoing arises from any gross negligence or willful misconduct of, or material breach of this Agreement by, the Company or any of its obligations under the Financing Commitment Letters or default, termination or repudiation by any party to any Representatives. None of the Financing Commitment Letters representations, warranties or definitive agreements related to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any covenants of the Financing Commitment Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing and (z) if at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions and in the manner or from the sources contemplated by any of the Financing Commitment Letters or definitive agreements related to the Financing.
(b) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitment Letters (including the “flex” provisions), Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources subject to conditions that are not materially less favorable in the aggregate to Purchaser than those Company set forth in the Financing Commitment Letters, in an amount sufficient when combined with other available cash resources to consummate the Acquisition and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources, provided that any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Financing as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected to cause any delay of the consummation of the transactions contemplated hereby. In such event, the term “Financing Commitment Letter” as used herein this Agreement shall be deemed to include apply to, or deemed breached or violated by, any of the new commitment letter entered into actions taken by the Company at the express request of Parent set forth in accordance with this Section 7.22(b)5.17. Purchaser Parent acknowledges and agrees that (i) the obtaining of the Debt Financing is not a condition to Closing and (ii) a breach of this Section 5.17 shall provide Seller with not constitute a copy breach of any new financing commitment letters obtained by Purchaser the Company that may give Parent termination rights in connection with any such alternate financing as promptly as practicable following the execution thereof (other than redacted information consistent with the information redacted from the Fee Lettersrespect of this Agreement, including without limitation, for purposes of Section 7.1(f).
Appears in 3 contracts
Sources: Merger Agreement (Jetblue Airways Corp), Merger Agreement (Spirit Airlines, Inc.), Merger Agreement (Jetblue Airways Corp)
Financing; Financing Cooperation. (a) Notwithstanding anything contained The Buyer shall have sufficient funds available to it at the Closing to satisfy the payment of the Purchase Price in full. In the event that the Buyer determines, in its sole discretion, to arrange or obtain any financing to provide funds in connection with the transactions contemplated by this Agreement (the “Financing”), (i) the Buyer shall use, and shall cause its Affiliates to use, its and their reasonable best efforts to ensure that the Financing is available at Closing and (ii) the Sellers shall provide, and shall cause their respective controlled Affiliates and Representatives to provide to the contraryBuyer reasonable assistance and cooperation as is reasonably requested by the Buyer in connection with arranging, Purchaser acknowledges obtaining and agrees that Closing is not conditioned upon Purchaser obtaining any financingsyndicating the Financing, as necessary, including assisting the Buyer with preparation of customary documents and other materials reasonably necessary in connection with the Financing. Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be deemed to be in breach of the covenant set forth in this Section 7.22 so long as Seller has acted 5.9, in good faith no event shall the Sellers be required to comply prepare any balance sheet, cash flow statement, income statement or statement of stockholder’s equity with regard to the Business, the Transferred Assets or the Assumed Liabilities, whether prior to or following the Closing.
(b) Notwithstanding the foregoing, the Buyer agrees that (i) on the earlier of the Closing Date or the termination of this Agreement, the Buyer shall promptly reimburse the Sellers for all documented out-of-pocket Third Party costs and expenses incurred by the Sellers in connection with such cooperation pursuant to this Section 5.10; and (ii) the Buyer shall indemnify and hold harmless the Sellers and their respective Affiliates and their respective Representatives from and against any and all Liabilities, Losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred in connection with the cooperation arrangement of the Financing or any assistance or activities provided in connection therewith. Notwithstanding anything to the contrary herein, it is understood and assistance agreed that the condition precedent set forth in Section 9.2(b), as applied to the Sellers’ obligations under this Section 7.22. Purchaser 5.9, shall use its reasonable best efforts to take, and to cause be deemed to be takensatisfied unless the Financing has not been obtained as a direct result of the Sellers’ Willful Breach of its obligations under this Section 5.9.
(c) The Buyer understands and acknowledges that under the terms of this Agreement, all actions and the Buyer’s obligation to doconsummate the transactions hereunder is not in any way contingent upon or otherwise subject to the Buyer’s consummation of any financing arrangements, and the Buyer’s obtaining of any financing or the availability, grant, provision or extension of any financing to cause the Buyer. For the avoidance of doubt, if any such financing has not been obtained, the Buyer shall continue to be doneobligated, all things necessary to arrange the Financing on the until such time as this Agreement is terminated in accordance with its terms and subject to the conditions described in the Financing Commitment Letters (including the “flex” provisions therein) and shall not permit any amendment, supplement or modification to be made to, or any waiver by Purchaser of any provision or remedy under the Financing Commitment Letters, if such amendment, supplement, modification satisfaction or waiver would (i) reduce the aggregate amount of net cash proceeds of the Financing as compared to the amount of such aggregate net cash proceeds contemplated by the Financing Commitment Letters as conditions set forth in effect on the date of this Agreement or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditionsArticle 9, to the receipt of the Financing in a manner that would (1) prevent, impede or delay the funding of the Financing or the consummation of the transactions contemplated by this Agreement or (2) adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Financing Commitment Letters. Purchaser shall promptly deliver to Seller copies of any amendment, supplement, modification or waiver to the Financing Commitment Letters. Without limiting the generality of the foregoing and except to the extent that Purchaser has completed an offering of debt or equity securities whose net cash proceeds replace amounts that were to be provided under the Financing Commitment Letters and which will be available to Purchaser for Closing, Purchaser shall use its reasonable best efforts to (i) maintain in effect the commitments under the Financing Commitment Letters until the consummation of consummate the transactions contemplated by this Agreement, (ii) negotiate and enter into definitive agreements contemplated by the Financing Commitment Letters on terms and conditions (including, as applicable, the “flex” provisions) no less favorable to Purchaser than those contained in the Financing Commitment Letters, (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except to the extent that Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction of the conditions set forth in the Financing Commitment Letters consummate the Financing at or prior to Closing. Purchaser shall keep Seller reasonably informed of the status of its efforts to arrange the Financing (or replacement thereof) as Seller may reasonably request, and shall provide Seller with copies of all definitive documents related to the Financing and, as Seller may reasonably request from time to time, drafts of such documents posted to a lender syndicate group, provided that the fee letters may be redacted. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice (x) of any material breach or default by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of which Purchaser becomes aware, (y) of the receipt of any notice or other communication, in each case, from any Financing source with respect to any (1) material breach of any of its obligations under the Financing Commitment Letters or default, termination or repudiation by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any of the Financing Commitment Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing and (z) if at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions and in the manner or from the sources contemplated by any of the Financing Commitment Letters or definitive agreements related to the Financing.
(b) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitment Letters (including the “flex” provisions), Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources subject to conditions that are not materially less favorable in the aggregate to Purchaser than those set forth in the Financing Commitment Letters, in an amount sufficient when combined with other available cash resources to consummate the Acquisition and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources, provided that any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Financing as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected to cause any delay of the consummation of the transactions contemplated hereby. In such event, the term “Financing Commitment Letter” as used herein shall be deemed to include the new commitment letter entered into in accordance with this Section 7.22(b). Purchaser shall provide Seller with a copy of any new financing commitment letters obtained by Purchaser in connection with any such alternate financing as promptly as practicable following the execution thereof (other than redacted information consistent with the information redacted from the Fee Letters).
Appears in 3 contracts
Sources: Asset Purchase Agreement (DISH Network CORP), Asset Purchase Agreement (SPRINT Corp), Asset Purchase Agreement (T-Mobile US, Inc.)
Financing; Financing Cooperation. (a) Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be deemed to be in breach of the covenant set forth in this Section 7.22 so long as Seller has acted in good faith to comply with the cooperation and assistance set forth in this Section 7.22. Purchaser Parent shall use its reasonable best efforts to take, and to or cause to be taken, all actions and to do, and to or cause to be done, all things necessary necessary, proper or advisable to arrange obtain the Financing on the terms and subject to the conditions described in the Financing Commitment Letters (Financing, including the “flex” provisions therein) and shall not permit any amendment, supplement or modification to be made to, or any waiver by Purchaser of any provision or remedy under the Financing Commitment Letters, if such amendment, supplement, modification or waiver would (i) reduce the aggregate amount of net cash proceeds of the Financing as compared to the amount of such aggregate net cash proceeds contemplated by the Financing Commitment Letters as in effect on the date of this Agreement or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Financing in a manner that would (1) prevent, impede or delay the funding of the Financing or the consummation of the transactions contemplated by this Agreement or (2) adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Financing Commitment Letters. Purchaser shall promptly deliver to Seller copies of any amendment, supplement, modification or waiver to the Financing Commitment Letters. Without limiting the generality of the foregoing and except to the extent that Purchaser has completed an offering of debt or equity securities whose net cash proceeds replace amounts that were to be provided under the Financing Commitment Letters and which will be available to Purchaser for Closing, Purchaser shall use its using reasonable best efforts to (i) maintain in effect the commitments under the Financing Commitment Letters until the consummation of the transactions contemplated by this AgreementLetter, (ii) satisfy on a timely basis all Financing Conditions applicable to Parent in the Commitment Letter, (iii) negotiate and enter into definitive agreements with respect to the Financing on or before the Closing Date on the terms and conditions contemplated by the Financing Commitment Letters Letter or on such other terms and conditions (including, as applicable, the “flex” provisions) no less Parent reasonably determines are substantially comparable or more favorable to Purchaser than those contained in the Financing Commitment Letters, Parent (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except but only to the extent that Purchaser otherwise has cash resources at Closing any such other terms would not reasonably be expected to fund adversely impact or delay in any material respect the ability of Parent to consummate the Transactions in accordance with this Agreement or obtain the Financing), (iv) upon satisfaction of all of the conditions in this Agreement to Parent’s and the Company’s obligations to effect the Closing, and satisfaction of all of the Financing Conditions, enforce its payment obligations hereunder taking into account upfront and similar fees payable under rights against the other parties to the Commitment Letter, if any, including to require such parties to provide the Financing (including provided, that Parent shall not be required to the extent any “flex” provisions are implementedbring an Action against such other parties), upon satisfaction of the conditions set forth in the Financing Commitment Letters and (v) consummate the Financing at or prior to ClosingFinancing. Purchaser shall keep Seller reasonably informed of the status of its efforts to arrange the Financing (or replacement thereof) as Seller may reasonably request, and shall provide Seller with copies of all definitive documents related to the Financing and, as Seller may reasonably request from time to time, drafts of such documents posted to a lender syndicate group, provided that the fee letters may be redacted. Without limiting the generality of the foregoing, Purchaser Parent shall give Seller the Company prompt notice (x) of any material breach, repudiation or threatened or anticipated breach or default by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of which Purchaser becomes aware, (y) of the receipt of any notice or other communication, in each case, from any Financing source with respect to any (1) material breach of any of its obligations under the Financing Commitment Letters or default, termination or repudiation by any party to any the Commitment Letter of the Financing Commitment Letters which Parent or definitive agreements related to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any of the Financing Commitment Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing and (z) if at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions and in the manner or from the sources contemplated by any of the Financing Commitment Letters or definitive agreements related to the Financing.
(b) If any portion of the Financing its affiliates becomes unavailable on the terms and conditions contemplated in the Financing Commitment Letters (including the “flex” provisionsaware. Without limiting Parent’s other obligations under this Section 6.16(a), Purchaser if a Financing Failure Event occurs Parent shall (i) immediately notify the Company of such Financing Failure Event and the reasons therefor, (ii) in consultation with the Company, use its reasonable best efforts to arrange and obtain alternative financing from alternative sources subject to conditions that are not materially less favorable in the aggregate to Purchaser than those set forth in the Financing Commitment Lettersfinancing sources, in an amount sufficient when combined with other available cash resources to make the Closing Date Payments and consummate the Acquisition and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sourcesTransactions, provided that any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Financing as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected to cause any delay of the consummation of the transactions contemplated hereby. In such event, the term “Financing Commitment Letter” as used herein shall be deemed to include the new commitment letter entered into in accordance with this Section 7.22(b). Purchaser shall provide Seller with a copy of any new financing commitment letters obtained by Purchaser in connection with any such alternate financing as promptly as practicable following the execution thereof occurrence of such event, and (other than redacted information consistent iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a copy of, a new financing commitment (subject only to the information redacted from Financing Conditions) that provides for such alternative financing. Neither Parent nor any of its affiliates shall amend, modify, supplement, restate, assign, substitute or replace the Fee Letters)Commitment Letter except for substitutions and replacements pursuant to the immediately preceding sentence. Neither Parent nor any of its affiliates shall take any action that would reasonably be expected to materially delay or prevent the consummation of the Financing.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Integrated Device Technology Inc)
Financing; Financing Cooperation. (a) Notwithstanding anything contained in From the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, Parent and Merger Sub agree to the contrary, Purchaser acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be deemed to be in breach of the covenant set forth in this Section 7.22 so long as Seller has acted in good faith to comply with the cooperation and assistance set forth in this Section 7.22. Purchaser shall use its reasonable best efforts to take, and to or cause to be taken, all actions actions, and to do, and to or cause to be done, all things necessary to arrange and obtain, on or prior to the Closing Date, the Debt Financing on the terms and subject to the conditions described in the Financing Commitment Letters (including the “flex” provisions therein) Credit Agreement, and shall not permit any amendment, supplement material amendment or modification to be made to the Credit Agreement that would, or would reasonably be expected to, or any waiver by Purchaser of any provision or remedy under the Financing Commitment Letters, if such amendment, supplement, modification or waiver would (i) reduce the aggregate amount of net cash proceeds of the Debt Financing as compared to an amount less than an amount necessary to satisfy the amount of such aggregate net cash proceeds contemplated by the Financing Commitment Letters as in effect on the date of this Agreement Required Funding Amount or (ii) impose new or additional conditions, conditions precedent or other terms or otherwise amendexpand, amend or modify or expand any conditions, of the conditions to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (1A) prevent, impede materially delay or delay prevent the Closing or (B) make the funding of the Financing or the consummation of the transactions contemplated by this Agreement or (2) adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Financing Commitment Letters. Purchaser shall promptly deliver to Seller copies of any amendment, supplement, modification or waiver to the Financing Commitment Letters. Without limiting the generality of the foregoing and except to the extent that Purchaser has completed an offering of debt or equity securities whose net cash proceeds replace amounts that were to be provided under the Financing Commitment Letters and which will be available to Purchaser for Closing, Purchaser shall use its reasonable best efforts to (i) maintain in effect the commitments under the Financing Commitment Letters until the consummation of the transactions contemplated by this Agreement, (ii) negotiate and enter into definitive agreements contemplated by the Financing Commitment Letters on terms and conditions (including, as applicable, the “flex” provisions) no less favorable to Purchaser than those contained in the Financing Commitment Letters, (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except to the extent that Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction of the conditions set forth in the Financing Commitment Letters consummate the Financing at or prior to Closing. Purchaser shall keep Seller reasonably informed of the status of its efforts to arrange the Financing (or replacement thereof) as Seller may reasonably request, and shall provide Seller with copies of all definitive documents related to the Financing and, as Seller may reasonably request from time to time, drafts of such documents posted to a lender syndicate group, provided that the fee letters may be redacted. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice (x) of any material breach or default by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of which Purchaser becomes aware, (y) of the receipt of any notice or other communication, in each case, from any Financing source with respect to any (1) material breach of any of its obligations under the Financing Commitment Letters or default, termination or repudiation by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any of the Financing Commitment Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing and (z) if at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms and conditions and in the manner (or from the sources contemplated by satisfaction of any condition to obtaining any portion of the Financing Commitment Letters or definitive agreements related Debt Financing) less likely to the Financingoccur.
(b) Parent shall keep the Company reasonably informed of any material developments in the status of the Debt Financing. If any portion of the Debt Financing necessary to satisfy the Required Funding Amount becomes unavailable (after giving effect to any other equity and/or debt financing that may then be available to cover such unavailable amount) on the terms and conditions contemplated in the Financing Commitment Letters (including the “flex” provisions)Credit Agreement, Purchaser Parent shall use its reasonable best efforts to arrange and obtain alternative debt financing from alternative sources subject to on terms and conditions that are not materially less favorable in the aggregate not less favorable to Purchaser than those set forth Parent (as determined in good faith by Parent, but in any event that does not impose any new or additional condition precedent, or otherwise expand, amend or modify any of the Financing Commitment Lettersconditions precedent, in an amount sufficient when combined with other available cash resources to consummate the Acquisition and the other transactions contemplated hereby as promptly as practicable after the occurrence receipt of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Debt Financing from in a manner that would be reasonably expected to (A) materially delay or prevent the same Closing or alternative financing sources, provided that any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to (B) make the funding on the “Closing Date” of any portion of the Debt Financing (or satisfaction of any condition to obtaining any portion of the Debt Financing) less likely to occur) than the Debt Financing contemplated by the Credit Agreement as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected in an amount sufficient to cause replace any delay unavailable portion of the consummation of the transactions contemplated hereby. In such event, the term “Debt Financing Commitment Letter” as used herein shall be deemed to include the new commitment letter entered into in accordance with this Section 7.22(b). Purchaser shall provide Seller with a copy of any new financing commitment letters obtained by Purchaser in connection with (any such alternate financing alternative debt financing, an “Alternative Financing”) as promptly as practicable following the execution thereof occurrence of such event, and the provisions of this Section 5.20 shall be applicable to the Alternative Financing, and, for the purposes of this Agreement (other than redacted Section 5.4), all references to the “Debt Financing” shall be deemed to include such Alternative Financing and all references to the “Credit Agreement” shall include the applicable documents for the Alternative Financing. It is understood and agreed that in no event will the reasonable best efforts of Parent be deemed or construed to require Parent to pay any fees materially in excess of those contemplated by the Credit Agreement as in effect on the date of this Agreement (whether to secure waiver of any conditions contained therein or otherwise).
(c) Parent shall give the Company prompt written notice (i) in the event Parent becomes aware of any material breach or material default (or any event, fact or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in material breach or material default) by any party to the Credit Agreement that would reasonably be expected to materially delay or prevent the Closing or result in any portion of the Debt Financing contemplated by the Credit Agreement necessary to satisfy the Required Funding Amount becoming unavailable, (ii) of the receipt by Parent or Merger Sub of any written notice from any Lender party to the Credit Agreement with respect to any actual breach, default, termination or repudiation by such Lender related to the Debt Financing or (iii) of any expiration of termination of the Credit Agreement.
(d) From the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with its terms, the Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to (x) furnish to Parent or Merger Sub all information consistent required to be provided with respect the Company and its Subsidiaries, and the business, operations and financial conditions thereof, pursuant to the terms of the Credit Agreement (including, without limitation, Sections 3.2(o) and 7.4(II) of the Credit Agreement) and (y) use reasonable best efforts to provide Parent with all cooperation as is reasonably requested by Parent in connection with arranging and obtaining the Debt Financing, including, without limitation, by:
(i) making available to Parent and the Debt Financing Sources reasonably requested financial and other pertinent information regarding the Company; provided, that no financial statements shall be required pursuant to this Section 5.20(d)(i) except to the extent required by clause (d)(x) above;
(ii) participating at reasonable times and upon reasonable notice in a reasonable number of meetings and due diligence sessions (it being understood that such meetings or due diligence sessions may occur telephonically or by videoconferencing) with Parent and/or the Debt Financing Sources;
(iii) cooperating with Parent and its Debt Financing Sources in the preparation of customary materials for customary marketing in connection with the Debt Financing;
(iv) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be required in connection with the Debt Financing (including a certificate of an appropriate officer of the Company with respect to solvency of the Company and its subsidiaries on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby) and other customary documents, in each case as may be reasonably requested by Parent or the Debt Financing Sources and that are not effective until as of, or after, the Closing;
(v) cooperating with ▇▇▇▇▇▇’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Financing;
(vi) providing to Parent and the Debt Financing Sources at least four (4) Business Days prior to the Closing all documentation and other information redacted required by bank regulatory authorities in the United States under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and any beneficial ownership certification required in connection with 31 C.F.R. Section 1010.230, in each case, to the extent reasonably requested ten (10) days prior to the Closing;
(vii) facilitating the granting of a security interest (and the perfection thereof) in collateral (including obtaining insurance certificates with customary endorsements and delivering original stock certificates with customary stock powers as required in connection with the Debt Financing) and the termination of any existing guarantee and collateral arrangements in respect thereof;
(viii) subject to customary confidentiality agreements, using reasonable best efforts to cooperate with the due diligence investigation of the Debt Financing Sources, to the extent customary and reasonable; and
(ix) causing the taking of all corporate and other actions by the Company and its Subsidiaries that are reasonably requested by Parent to permit the consummation of the Debt Financing on the Closing Date and to permit the proceeds thereof to be made available to Parent and/or Merger Sub as of the Closing; it being understood and agreed that (A) no such corporate or other action will take effect prior to the Closing and (B) any such corporate or other action will only be required of the directors, members, partners, managers or officers of the Company or any of its Subsidiaries who retain their respective positions as of the Closing.
(e) The Company consents to the customary and reasonable use of the Company’s and its Subsidiaries’ logos solely in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended, or reasonably likely, to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company and its Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (A) none of the Company or any of its Subsidiaries shall be required to execute or enter into any certificate, instrument, agreement or other document in connection with the Debt Financing which will be effective prior to the Effective Time; (B) nothing herein shall require cooperation or other actions or efforts on the part of the Company, its Subsidiaries or any of their Affiliates, or any of their respective directors, officers, employees or agents, in connection with the Debt Financing to the extent it would interfere unreasonably or materially with the business or operations of the Company and its Subsidiaries (it being understood that the assistance described in clauses (i) through (ix) of Section 5.20(d) does not unreasonably or materially interfere with the business or operations of the Company and its Subsidiaries); (C) none of the Company or any of its Subsidiaries will be required to pay any commitment or other similar fee or to incur any other liability or obligation, in each case, in connection with the Debt Financing prior to the Closing; (D) nothing herein shall require the board of directors or similar governing body of the Company or any of its Subsidiaries, prior to the Closing, to adopt resolutions approving the agreements, documents or instruments pursuant to which the Debt Financing is made (it being agreed and understood that Persons who will continue as directors or managers of the Company or any of its Subsidiaries after the Closing may be required to execute and deliver in escrow resolutions or consents to approve or authorize the execution of the Debt Financing that will be effective at the Closing); and (E) none of the Company, any of its Subsidiaries or any of their Representatives shall be required to deliver any legal opinions. All information provided or made available by or on behalf of the Company or its Subsidiaries pursuant to this Section 5.20 shall be kept confidential in accordance with the Confidentiality Agreement, it being understood that such information may be shared with prospective Debt Financing Sources, subject to such Debt Financing Sources agreeing to be bound by customary confidentiality undertakings.
(f) Parent shall (x) reimburse the Company for any reasonable and documented out-of-pocket expenses incurred or otherwise payable by the Company, any of its Subsidiaries or any of their respective Representatives in connection with their cooperation pursuant to Section 5.20(d), promptly upon receipt of the Company’s written request therefor and (y) indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities suffered or incurred by them in connection with the cooperation provided pursuant to Section 5.20(d) or any information provided in connection therewith, except to the extent such liabilities arise out of or result from the Fee Lettersgross negligence, Fraud or willful misconduct by the Company, its Subsidiaries or any of their respective equityholders, parent entities, agents or other Representatives.
(g) Notwithstanding anything to the contrary, the condition set forth in Section 6.2(b), as it applies to the Company’s obligations under this Section 5.20, shall be deemed satisfied unless the Debt Financing (or any Alternative Financing) has not been obtained as a result of the Company’s material breach of its obligations under this Section 5.20.
Appears in 1 contract
Sources: Merger Agreement (Keypath Education International, Inc.)
Financing; Financing Cooperation. (a) Notwithstanding anything contained in this Agreement to the contraryParent shall, Purchaser acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Notwithstanding anything to the contrary contained in this Agreementshall cause each of its Affiliates (including Spectrum Brands, Seller shall not be deemed to be in breach of the covenant set forth in this Section 7.22 so long as Seller has acted in good faith to comply with the cooperation and assistance set forth in this Section 7.22. Purchaser shall Inc.) to, use its reasonable best efforts to takeobtain the Debt Financing or any other financing that is in an aggregate amount sufficient for purposes of funding in full the Transactions (the “Financing”) on a timely basis, but in no event later than two (2) Business Days prior to the Termination Date, including, if necessary using its reasonable best efforts to (i) comply with its obligations under the applicable Debt Financing Commitment Letter and any definitive agreements related thereto, (ii) negotiate and enter into definitive agreements with respect to cause to be taken, all actions and to do, and to cause to be done, all things necessary to arrange the Debt Financing on the a timely basis on terms and subject to the conditions described in the Financing Commitment Letters (including the “market flex” provisions thereinprovisions) contained therein or otherwise not materially less favorable to Parent in the aggregate than those contained in the Debt Financing Commitment Letter (and shall not permit any amendmentthe redacted fee letter), supplement or modification (iii) satisfy on a timely basis all conditions applicable to be made toParent and Spectrum Brands, or any waiver by Purchaser Inc. contained in the Debt Financing Commitment Letter within its control, including the payment of any provision commitment, engagement or remedy under the Financing Commitment Letters, if such amendment, supplement, modification or waiver would (i) reduce the aggregate amount of net cash proceeds of the Financing placement fees required as compared a condition to the amount of such aggregate net cash proceeds contemplated by the Financing Commitment Letters as in effect on the date of this Agreement or Debt Financing, (iiiv) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Financing in a manner that would (1) prevent, impede or delay the funding of the Financing or the consummation of the transactions contemplated by this Agreement or (2) adversely impact the ability of the Purchaser to enforce its rights against the other parties financial institutions that are a party to the Debt Financing Commitment LettersLetter, and (v) consummate the Debt Financing at or prior to the Closing Date (it being understood that it is not a condition to Closing under this Agreement for Parent or Spectrum Brands, Inc. to obtain the Debt Financing, any Alternative Debt Financing or other Financing). Purchaser For the avoidance of doubt, in the event all or any portion of the Debt Financing structured as “high-yield” financing has not been consummated on or prior to the Closing, Parent and Merger Sub shall promptly deliver use their reasonable best efforts to Seller copies cause the proceeds of the bridge facilities contemplated by the Debt Financing Commitment Letter to be available. Parent shall keep the Representative and the Company informed on a reasonable basis and in reasonable detail of the status of its efforts to arrange the Debt Financing. Parent shall give the Representative and the Company prompt notice upon having knowledge of any amendment, supplement, modification or waiver to breach by any party of the Debt Financing Commitment Letters. Without limiting the generality Letter or any termination of the foregoing Debt Financing Commitment Letter. Other than as expressly set forth in Section 5.8(b), Parent shall not, and except shall not permit its Affiliates (including Spectrum Brands, Inc.) to, without the prior written consent of the Representative, amend, modify, supplement or waive any of the conditions or contingencies to funding contained in the Debt Financing Commitment Letter or any other provision of, or remedies under, the Debt Financing Commitment Letter, in each case, to the extent that Purchaser has completed an offering such amendment, modification, supplement or waiver would reasonably be expected to have the effect of debt (A) adversely affecting in any material respect the ability of Parent to timely consummate the Transactions, (B) amending, modifying, supplementing or equity securities whose net cash proceeds replace amounts that were waiving the conditions or contingencies to be provided under the Debt Financing Commitment Letters and which will be available Letter or the Debt Financing in a manner materially adverse to Purchaser for the Company or the Sellers or (C) materially delaying the Closing.
(b) If all or any portion of the Debt Financing becomes unavailable, Purchaser Parent shall use its reasonable best efforts to (i) maintain in effect arrange to promptly obtain the commitments under the Debt Financing Commitment Letters until the consummation or such portion of the transactions contemplated by this AgreementDebt Financing from alternative sources, (ii) negotiate which may include one or more of a senior secured debt financing, an offering and enter into definitive agreements contemplated by the Financing Commitment Letters on terms sale of notes or equity securities, or any other financing or offer and conditions (includingsale of other debt or equity securities, as applicable, the “flex” provisions) no less favorable to Purchaser than those contained in the Financing Commitment Letters, (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except to the extent that Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction of the conditions set forth in the Financing Commitment Letters consummate the Financing at or prior to Closing. Purchaser shall keep Seller reasonably informed of the status of its efforts to arrange the Financing (or replacement combination thereof) as Seller may reasonably request, and shall provide Seller with copies of all definitive documents related to the Financing and, as Seller may reasonably request from time to time, drafts of such documents posted to a lender syndicate group, provided that the fee letters may be redacted. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice (x) of any material breach or default by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of which Purchaser becomes aware, (y) of the receipt of any notice or other communication, in each casean amount sufficient, from any Financing source with respect when added to any (1) material breach of any of its obligations under the Financing Commitment Letters or default, termination or repudiation by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any of the Financing Commitment Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing and (z) if at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Debt Financing or other sources of liquidity that is available, to pay in cash all amounts required to be paid by Parent in connection with the Transactions (“Alternative Debt Financing”) and (ii) obtain a new financing commitment letter (the “Alternative Debt Commitment Letter”) and a new definitive agreement with respect thereto that provides for financing (A) on terms not materially less favorable, in the aggregate, to Parent, (B) containing conditions to draw and other terms and that would reasonably be expected to affect the availability thereof that (1) are not more onerous, taken as a whole, than those conditions and terms contained in the manner or from the sources contemplated by any Debt Financing Commitment Letter as of the Financing Commitment Letters or definitive agreements related date hereof and (2) would not reasonably be expected to delay the Financing.
Closing and (bC) If in an amount that is sufficient, when added to any portion of the Debt Financing becomes unavailable on or other sources of liquidity that is available, to pay in cash all amounts required to be paid by Parent in connection with the terms and conditions contemplated in the Financing Commitment Letters (including the “flex” provisions), Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources subject to conditions that are not materially less favorable in the aggregate to Purchaser than those set forth in the Financing Commitment Letters, in an amount sufficient when combined with other available cash resources to consummate the Acquisition and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources, provided that any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Financing as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected to cause any delay of the consummation of the transactions contemplated herebyTransactions. In such event, the term “Debt Financing” as used in this Agreement shall be deemed to include any Alternative Debt Financing and the term “Debt Financing Commitment Letter” as used herein in this Agreement shall be deemed to include the new commitment letter entered into in accordance with this Section 7.22(b). Purchaser shall provide Seller with a copy of any new financing commitment letters obtained by Purchaser in connection with any such alternate financing as promptly as practicable following the execution thereof (other than redacted information consistent with the information redacted from the Fee Letters)Alternative Debt Commitment Letter.
Appears in 1 contract
Financing; Financing Cooperation. (a) Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be deemed to be in breach of the covenant set forth in this Section 7.22 so long as Seller has acted in good faith to comply with the cooperation and assistance set forth in this Section 7.22. Purchaser Parent shall use its reasonable best efforts to take, and to or cause to be taken, all actions and to do, and to or cause to be done, all things necessary necessary, proper or advisable to arrange and obtain the Financing on the terms and subject to the conditions described in the Financing Commitment Letters (including the “flex” provisions therein) Commitments and shall not permit permit, without the consent of the Company, any amendment, supplement amendment or modification to be made to, or any waiver by Purchaser of any material provision or remedy under the Debt Financing Commitment Letters, Commitments if such amendment, supplement, modification or waiver would (ix) reduce the aggregate amount of net cash proceeds of the Financing as compared below the amount required to consummate the transactions contemplated by this Agreement (including by changing the amount of such aggregate net cash proceeds contemplated by fees to be paid or original issue discount of the Financing Commitment Letters as in effect on the date of this Agreement or Debt Financing), (iiy) impose new or additional conditions, conditions or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing in a manner that would (1I) prevent, impede delay (taking into account the Marketing Period) or delay prevent the funding of the Financing or the consummation of the transactions contemplated by this Agreement Closing Date or (2II) adversely impact in any material respect the ability of the Purchaser Parent to enforce its rights against the other parties to the Debt Financing Commitment LettersCommitments or the definitive agreements with respect thereto, the ability of Parent to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby. Purchaser Parent may replace or amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date hereof. For purposes of this Section 6.13, references to “Financing” shall promptly deliver to Seller copies of any amendment, supplement, modification or waiver to include the financing contemplated by the Financing Commitment LettersCommitments as permitted to be amended or modified by this Section 6.13(a) and references to “Financing Commitments” or “Debt Financing Commitments” shall include such documents as permitted to be amended or modified by this Section 6.13(a). Without limiting the generality foregoing, each of the foregoing and except to the extent that Purchaser has completed an offering of debt or equity securities whose net cash proceeds replace amounts that were to be provided under the Financing Commitment Letters and which will be available to Purchaser for Closing, Purchaser Buyer Parties shall use its reasonable best efforts to (i) maintain in effect the commitments under the Debt Financing Commitment Letters Commitments until the consummation of the transactions contemplated by this AgreementAgreement are consummated, (ii) negotiate satisfy all conditions and enter into definitive agreements contemplated by covenants within the Financing Commitment Letters on terms and conditions (including, as applicable, control of the “flex” provisions) no less favorable to Purchaser than those contained Buyer Parties in the Debt Financing Commitment LettersCommitments at or prior to Closing and otherwise comply with its obligations thereunder, (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except to the extent that Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction of the conditions set forth in the Financing Commitment Letters consummate the Financing at or prior to Closing. Purchaser shall keep Seller reasonably informed of the status of its efforts to arrange the Financing (or replacement thereof) as Seller may reasonably request, and shall provide Seller with copies of all definitive documents related to the Financing and, as Seller may reasonably request from time to time, drafts of such documents posted to a lender syndicate group, provided that the fee letters may be redacted. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice (x) of any material breach or default by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of which Purchaser becomes aware, (y) of the receipt of any notice or other communication, in each case, from any Financing source with respect to any (1) material breach of any of its obligations under the Financing Commitment Letters or default, termination or repudiation by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any of the Financing Commitment Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing and (z) if at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions and in the manner or from the sources contemplated by any of the Financing Commitment Letters or definitive agreements related to the Financing.
(b) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitment Letters (including the “flex” provisions), Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources subject to conditions that are not materially less favorable in the aggregate to Purchaser than those set forth in the Financing Commitment Letters, in an amount sufficient when combined with other available cash resources to consummate the Acquisition and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources, provided that any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Financing as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected to cause any delay of the consummation of the transactions contemplated hereby. In such event, the term “Financing Commitment Letter” as used herein shall be deemed to include the new commitment letter entered into in accordance with this Section 7.22(b). Purchaser shall provide Seller with a copy of any new financing commitment letters obtained by Purchaser in connection with any such alternate financing as promptly as practicable following the execution thereof (other than redacted information consistent with the information redacted from the Fee Letters).enter
Appears in 1 contract
Financing; Financing Cooperation. (a) Notwithstanding anything contained in this Agreement to the contrary, Purchaser Parent acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Notwithstanding anything to the contrary contained in this AgreementSeller Representative, Seller the Sellers, the Company, their respective Affiliates and their respective directors, managers, members, officers, employees, agents and representatives have no responsibility for, and shall not be deemed incur any liability to be any Person under, the Debt Financing that Parent may raise in breach of connection with the covenant transactions contemplated by this Agreement or any cooperation provided by such Persons pursuant to this Section 7.2.
(b) Parent shall use, and cause its Affiliates to use, all reasonable endeavors to arrange, consummate and obtain the Financing contemplated by the Commitment Letters on the respective terms set forth in this Section 7.22 so long as Seller has acted in good faith therein, including by using all reasonable endeavors to comply with the cooperation and assistance set forth in this Section 7.22. Purchaser shall use its reasonable best efforts to take, and to take or cause to be taken, all actions and to do, and or use all reasonable endeavors to cause to be done, all things necessary necessary, proper or advisable to arrange (i) maintain in effect the Financing and the Commitment Letters on terms not materially less favorable to the Parent and Merger Sub than are set forth in the Commitment Letters as of the date of this Agreement, (ii) enter into definitive financing agreements with respect to the Debt Financing, so that such agreements are in effect no later than the Closing Date on terms and subject conditions not materially less favorable to the Parent and Merger Sub than the respective terms and conditions described contained in the Financing Commitment Letters (including the “flex” provisions thereinfee letters related thereto) on the date of this Agreement;, and (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub in such definitive financing agreements and consummate the Financing at the Closing. Prior to the Closing, Parent shall not permit any amendment, supplement or modification to be made agree to, or permit, any amendment or modification of, or waiver by Purchaser of any provision under, the Commitment Letters or remedy under other documentation relating to the Financing Commitment Letters, if such amendment, supplement, modification or waiver would that (i) would reduce the aggregate amount of net cash proceeds of the Debt Financing as compared to or Equity Financing, including by changing the amount of such aggregate net cash proceeds fees to be paid or original issue discount (other than any market flex provisions) from that contemplated by in the Financing Debt Commitment Letters Letter to less than the amounts provided for in the Debt Commitment Letter as in effect on of the date of this Agreement Agreement, unless such amount is replaced with an amount of new equity financing or debt financing on conditions no less favorable to Parent, taken as a whole, than the terms set forth in the Debt Commitment Letter, (ii) would impose new or additional material conditions, or otherwise amendexpand, amend or modify or expand any conditions, of the conditions to the receipt of the Debt Financing in a manner that would (1) prevent, impede or delay the funding of the Financing or the consummation of to fund the transactions contemplated by this Agreement in a manner materially adverse to the Sellers or the Company, (2iii) would materially delay or prevent the Closing, (iv) would adversely impact the ability of the Purchaser Parent or any of its Affiliates (if applicable) to enforce its rights against the other parties to the Financing Commitment Letters. Purchaser shall promptly deliver , or (v) would reasonably be expected to Seller copies of any amendment, supplement, modification or waiver materially adversely affect Parent’s ability to the Financing Commitment Letters. Without limiting the generality of the foregoing and except to the extent that Purchaser has completed an offering of debt or equity securities whose net cash proceeds replace amounts that were to be provided under the Financing Commitment Letters and which will be available to Purchaser for Closing, Purchaser shall use its reasonable best efforts to (i) maintain in effect the commitments under the Financing Commitment Letters until the consummation of consummate the transactions contemplated by this Agreementhereby, in each case without the prior written consent of the Seller Representative (ii) negotiate which consent shall not be unreasonably withheld, conditioned or delayed). The Parent and enter into definitive agreements contemplated by its Affiliates shall not allow for any amendment to the Financing Equity Commitment Letters on terms and conditions (including, as applicable, without the “flex” provisions) no less favorable to Purchaser than those contained in the Financing Commitment Letters, (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except to the extent that Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction written consent of the conditions set forth in the Financing Commitment Letters consummate the Financing at or prior to Closing. Purchaser shall keep Seller reasonably informed of the status of its efforts to arrange the Financing (or replacement thereof) as Seller may reasonably request, and shall provide Seller with copies of all definitive documents related to the Financing and, as Seller may reasonably request from time to time, drafts of such documents posted to a lender syndicate group, provided that the fee letters Company which may be redacted. Without limiting the generality of the foregoing, Purchaser withheld in its sole and absolute discretion.
(c) The Parent shall give the Seller Representative and the Company prompt written notice upon (xA) becoming aware of any material breach or default by any party to the Commitment Letters or any definitive agreements relating to the Financing or (B) receipt by it or any of its Affiliates of any written notice or other written communication from any Person with respect to (i) any failure to comply with the terms of the Commitment Letters or any definitive agreements relating to the Financing by any party thereto, (ii) any actual or threatened termination or repudiation (whether in whole or in part) of any of the Financing Commitment Letters or any definitive agreements related relating to the Financing by any party thereto or (iii) any material dispute or disagreement between or among any of which Purchaser becomes awarethe parties to any of the Commitment Letters or any definitive agreements relating to the Financing solely to the extent such disagreement or dispute relates to the obligation of the parties thereto to fund their commitments thereunder or the availability of the Financing. Upon request by the Company, Parent shall inform the Seller Representative and the Company on a current basis and in reasonable detail of the status of the Parent’s efforts to arrange the Financing and to satisfy the conditions thereof and of material developments concerning the timing of the closing of the Financing contemplated by the Commitment Letters. If any of the Debt Financing or the Debt Commitment Letter (or any definitive financing agreement relating thereto) expire, are terminated or otherwise become unavailable prior to the Closing, in whole or in part, for any reason, Parent shall, and shall cause its Affiliates to use all reasonable endeavors to promptly to arrange for alternative financing to replace the debt financing contemplated by such expired or terminated commitments or arrangements in an amount at least equal to the Debt Financing or such unavailable portion thereof, on terms and conditions (after taking into account any “flex” provisions applicable to such alternative financing (as defined below)) not less favorable to Parent, taken as a whole, than the Debt Financing contemplated by the Debt Commitment Letter (after taking into account any “flex” provisions contemplated by the fee letter associated with the Debt Commitment Letter), in any event, without adding new or additional conditions or contingencies, or amending, modifying or expanding existing conditions, to receipt of the Debt Financing in a manner more onerous than those set forth in Debt Commitment Letter (including the fee letters related thereto) as of the date of this Agreement, and without inclusion of any other terms that would (A) prevent, impede or materially delay the ability of the Parent and Merger Sub to consummate the Closing, (yB) make any portion of the receipt Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to be obtained or prevent, impede or materially delay the funding of the Debt Financing or (C) adversely impact the ability of the Parent or any notice or other communicationof its Affiliates (if applicable) to enforce its rights against the parties to the Debt Commitment Letter. For the avoidance of doubt, in each case, from the failure to arrange for any such alternative Debt Financing source with respect to any (1) material breach does not relieve the Parent of any of its obligations under this Agreement. For the Financing Commitment Letters or default, termination or repudiation by any party to any purposes of the Financing Commitment Letters or definitive agreements related to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any of the Financing Commitment Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing and (z) if at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions and in the manner or from the sources contemplated by any of the Financing Commitment Letters or definitive agreements related to the Financing.
(b) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitment Letters (including the “flex” provisions), Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources subject to conditions that are not materially less favorable in the aggregate to Purchaser than those set forth in the Financing Commitment Letters, in an amount sufficient when combined with other available cash resources to consummate the Acquisition and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources, provided that any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Financing as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected to cause any delay of the consummation of the transactions contemplated hereby. In such eventthis Agreement, the term “Financing Debt Commitment Letter” as used herein shall be deemed to include the new any commitment letter entered into (or similar agreement) with respect to any alternative financing arranged in accordance compliance herewith (and any Debt Commitment Letter remaining in effect at the time in question).
(d) Prior to the Closing, the Company shall provide and the Company shall, and shall use all reasonable endeavors to cause its Subsidiaries and each of its and their respective representatives to provide, at Parent’s sole cost and expense, such cooperation reasonably requested by Parent in connection with the Debt Financing (provided that such requested cooperation does not unreasonably interfere in any material respect with the business or operations of the Company or the Company’s Subsidiaries), including the following: (i) upon reasonable advance notice and during normal business hours of the Company, causing the appropriate senior officers of the Company to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions (or other sessions with prospective lenders, investors and rating agencies), drafting sessions and sessions with rating agencies; (ii) assisting with the preparation of appropriate and customary materials for rating agency presentations, bank information memoranda and similar documents reasonably required in connection with the Debt Financing (including, to the extent necessary, customary authorization letters and an additional bank information memorandum that does not include material nonpublic information); (iii) assisting with the preparation of any pledge and security documents or other definitive financing documents as may be reasonably requested by Parent; provided that no obligation of the Company or its Subsidiaries under any such document or agreement shall be effective until the Closing; (iv) facilitating the pledging of collateral reasonably requested by Parent (including the delivery of original share certificates, together with share powers executed in blank, with respect to the Company and its Company’s Subsidiaries); provided that no pledge shall be effective until the Closing, (v) reasonably facilitating the taking of all corporate actions by the Company and its Subsidiaries with respect to entering such definitive financing documents and otherwise necessary to permit consummation of the Debt Financing, (vi) cooperating reasonably with due diligence requests, to the extent customary and reasonable, in connection with the Financing; (vii) executing a true and correct certificate of the chief financial officer of the Company with respect to solvency matters in the form of Annex I of Exhibit C of the Debt Commitment Letter (or substantially similar provisions in any alternative financing); (viii) providing Parent at least 3 Business Days prior to the Closing Date all customary documentation and other information with respect to the Company and its Subsidiaries, as is reasonably requested in writing by Parent at least 10 Business Days prior to the Closing Date that is required in connection with the Debt Financing under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and any certification required under beneficial ownership regulations; (ix) assisting Parent in procuring public corporate ratings and corporate family ratings in respect of the Company and public ratings of the facilities contemplated by the Debt Financing, (x) assisting with the payoff of existing indebtedness of the Company that will be repaid at or prior to Closing and the release of related liens on or prior to the Closing Date (including using all reasonable endeavors to obtain customary payoff letters, lien terminations and other instruments of discharge, in each case in a form reasonably acceptable to Parent); and (ix) furnishing on a confidential basis to Parent and its financing sources, as promptly as reasonably practicable, the financial information related to the Company and the Company’s Subsidiaries necessary to satisfy the conditions set forth in paragraph 5 of Exhibit C to the Debt Commitment Letter and such financial information reasonably requested by Parent for use in connection with the Debt Commitment Letter; provided that, notwithstanding anything in this Agreement to the contrary, until the Closing occurs, none of the Seller Representative, the Company, the Company’s Subsidiaries or their respective directors, officers, managers, members, employees, stockholders, representatives and Affiliates shall (A) be required to pay any commitment or other similar fee, (B) have any liability or obligation under the Debt Commitment Letters, any loan agreement or any related document or any other agreement or document related to the Debt Financing (other than with respect to customary authorization letters contemplated above) or (C) be required to take any action that will (1) conflict with or violate their respective Organizational Documents or any applicable Laws, orders or the contracts governing their respective existing Indebtedness for borrowed money or result in the contravention of, or that could reasonably be expected to result in a violation or breach of, or default under, any material contract to which the Company or any of its Subsidiaries is a party, (2) unreasonably disrupt the ordinary conduct of the business or operations of the Company or its Subsidiaries, (3) be required to incur any other liability in connection with the Debt Financing contemplated by the Debt Commitment Letter or (4) be required to (I) pass resolutions or consents, approve or authorize the execution of, or execute any document, agreement, certificate or instrument (other than any customary authorization letters referred to above) 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 Effective Time or (II) provide or cause its legal counsel to provide any legal opinions that are not required in connection with the transactions contemplated by this Section 7.22(b)7.2. Purchaser Parent shall provide indemnify and hold harmless each Seller, the Seller Representative, the Company and its Subsidiaries, and each of their respective directors, officers, managers, members, employees, stockholders, representatives, advisors and Affiliates, from and against any and all liabilities or losses suffered or incurred by them in connection with the arrangement, alteration or consummation or loss of the Debt Financing, any other financing that Parent may raise in connection with the transactions contemplated hereby, any cooperation provided pursuant to this Section 7.2, and any information utilized in connection therewith, in each case, except to the extent suffered or incurred as a copy result of the bad faith, gross negligence, willful misconduct or material breach of this Agreement by the Sellers, the Seller Representative or any new financing commitment letters obtained of the Company or its Subsidiaries or, in each case, their respective representatives. Additionally, Parent shall, promptly upon written request by Purchaser the Seller Representative on behalf of the Sellers or the Company, reimburse such party at or promptly after the Closing Date for all reasonable and documented out-of-pocket costs, fees and expenses (including attorneys’ fees and expenses) to the extent such costs, fees and expenses are incurred by the Company or its Company’s Subsidiaries, and each of their respective directors, officers, managers, members, employees, stockholders, representatives, advisors and Affiliates in connection with any such alternate financing as promptly as practicable following the execution thereof (other than redacted information consistent party complying with the information redacted from the Fee Letters)obligations under this Section 7.2.
Appears in 1 contract
Sources: Merger Agreement (Bumble Inc.)
Financing; Financing Cooperation. (a) Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be deemed to be in breach of the covenant set forth in this Section 7.22 so long as Seller has acted in good faith to comply with the cooperation and assistance set forth in this Section 7.22. 6.9.1 The Purchaser shall use its reasonable best efforts to take, and to or cause to be taken, all actions and to do, and to or cause to be done, all things necessary necessary, proper or advisable to arrange cause the Financing to be completed on or before December 23, 2015 and, until the earlier of Closing or the valid termination of this Agreement, to be available to the Purchaser upon the terms and subject conditions set forth in the Commitment Letter, including (i) taking actions to enforce its rights against the lenders and other persons providing the Financing to fund such Financing and (ii) using its reasonable best efforts to (A) maintain in effect the Commitment Letter, (B) satisfy on a timely basis all conditions applicable to the Purchaser obtaining the Financing, and (C) enter into definitive agreements with respect thereto on terms and conditions described contained in the Financing Commitment Letters (including the “flex” provisions therein) and Letter. The Purchaser shall not agree to or permit any amendment, supplement or other modification to be made toof, or waive any waiver by Purchaser of its rights under, the Commitment Letter or any provision or remedy under definitive agreements related to the Financing Commitment LettersFinancing, if such amendment, supplement, modification or waiver would (i) reduce the aggregate amount of net cash proceeds of the Financing as compared be reasonably expected to the amount of such aggregate net cash proceeds contemplated by the Financing Commitment Letters as in effect on the date of this Agreement or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Financing in a manner that would (1) prevent, impede delay or delay hinder the funding of the Financing or the consummation of Purchaser’s ability to consummate the transactions contemplated by this Agreement or (2) adversely impact hereby, in each case, without the ability of the Purchaser to enforce its rights against the other parties to the Financing Commitment LettersStockholders’ Representative’s prior written consent. The Purchaser shall promptly deliver furnish to Seller copies the Stockholders’ Representative a complete copy of any amendment, supplement, supplement or other modification or waiver to the Financing Commitment Letters. Without limiting the generality Letter and a full description of any waiver of the foregoing and except to the extent that Purchaser has completed an offering of debt or equity securities whose net cash proceeds replace amounts that were to be provided Purchaser’s rights under the Commitment Letter, as applicable. The Purchaser will from time to time provide such information as the Stockholders’ Representative may reasonably request regarding the status of the Financing and related negotiations.
6.9.2 In the event that any portion of the Financing becomes unavailable in the manner or from the sources contemplated in the Commitment Letters Letter or if the Bank is in breach of, or fails to perform, its obligations thereunder, (i) the Purchaser shall promptly notify the Stockholders’ Representative and which will be available to Purchaser for Closing, (ii) the Purchaser shall use its reasonable best efforts to (i) maintain in effect the commitments under the Financing Commitment Letters until the consummation of the transactions contemplated by this Agreement, (ii) negotiate and enter into definitive agreements contemplated by the Financing Commitment Letters on terms and conditions (including, as applicable, the “flex” provisions) no less favorable to Purchaser than those contained in the Financing Commitment Letters, (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except to the extent that Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction of the conditions set forth in the Financing Commitment Letters consummate the Financing at or prior to Closing. Purchaser shall keep Seller reasonably informed of the status of its efforts to arrange the Financing (or replacement thereof) as Seller may reasonably request, and shall provide Seller with copies of all definitive documents related to the Financing and, as Seller may reasonably request from time to time, drafts of such documents posted to a lender syndicate group, provided that the fee letters may be redacted. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice (x) of any material breach or default by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of which Purchaser becomes aware, (y) of the receipt of any notice or other communication, in each case, from any Financing source with respect to any (1) material breach of any of its obligations under the Financing Commitment Letters or default, termination or repudiation by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any of the Financing Commitment Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing and (z) if at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions and in the manner or from the sources contemplated by any of the Financing Commitment Letters or definitive agreements related to the Financing.
(b) If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitment Letters (including the “flex” provisions), Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources subject to conditions sources, on terms, taken as whole, that are not materially less favorable in beneficial to the aggregate to Purchaser than those set forth contemplated by the Commitment Letter, would not involve any material conditions to funding the Financing that are not contained in the Financing Commitment Letters, in an amount sufficient when combined with other available cash resources to consummate the Acquisition Letter and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion of the Financing from the same or alternative financing sources, provided that any such substitution shall would not expand upon in any material respect the conditions precedent or contingencies to the funding on the “Closing Date” of the Financing as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected to cause any prevent, materially impede or materially delay of the consummation of the transactions contemplated hereby. In such event, the term “Financing Commitment Letter” as used herein shall be deemed to include the new commitment letter entered into in accordance with this Section 7.22(b). Purchaser shall provide Seller with a copy of any new financing commitment letters obtained by Purchaser in connection with any such alternate financing as promptly as practicable following the execution thereof (other than redacted information consistent occurrence of such event. In the event that alternative financing shall be secured pursuant to this Section 6.9.2, the Purchaser shall comply with the covenants in Section 6.9.1 with respect to such alternative financing and shall promptly furnish to the Stockholders’ Representative the commitment letter and term sheet, including all exhibits, schedules or amendments thereto (or similar documents), with respect to such alternative financing.
6.9.3 From the date hereof until Closing or the valid termination of this Agreement, the Company and Stockholders shall, and the Stockholders shall cause the Company and its Subsidiaries to, provide to the Purchaser, and shall use their respective commercially reasonable efforts to cause the Company’s and its Subsidiaries’ officers, employees, and Representatives to, provide to the Purchaser all cooperation reasonably requested by the Purchaser in connection with the Financing, including the following: (i) providing any information redacted required to be provided by the Purchaser to the Bank in connection with the Financing as promptly as practicable and promptly providing the Purchaser with any supplements to such information as reasonably requested by the Purchaser; (ii) causing the Company’s and its Subsidiaries’ management team, with appropriate seniority and expertise, including senior officers, at reasonable times and upon reasonable notice, to participate in, including the preparation for, a reasonable number of meetings, conference calls, drafting sessions, due diligence sessions and similar presentations to and with prospective lenders; (iii) (A) assisting with the preparation of bank information memoranda and other customary materials required and/or reasonably requested by the Bank in connection with the Financing and (B) executing and delivering customary authorization letters relating to the Financing; (iv) using commercially reasonable efforts (A) to assist in the preparation of the schedules to the definitive financing documentation as may reasonably be requested, (B) to facilitate the pledging of collateral and (C) to request accountants to consent to the use of their reports in any material relating to the Financing; (v) obtaining customary debt pay-off letters; (vi) requesting its external auditors to participate in accounting due diligence sessions; (vii) furnishing the Purchaser and its financing sources promptly, and in any event no later than five (5) Business Days prior to the Closing Date, with all documentation and other information required by each Bank and other financing source to satisfy all applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act related to the Company and its Subsidiaries and (viii) causing the taking of corporate and other actions by the Company and its Subsidiaries reasonably necessary to permit the consummation of the Financing on the Closing Date and to permit the proceeds thereof to be made available to the Purchaser as of the Closing. The Company hereby consents to the use of the Company’s and its Subsidiaries’ logos in connection with the 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 and its Subsidiaries or the reputation or goodwill of the Company and its Subsidiaries and their respective marks. The Purchaser shall (i) promptly reimburse the Company upon the earlier of Closing or the termination of this Agreement for all of its reasonable and documented out-of-pocket costs and expenses (including attorney fees) incurred by the Company or its Subsidiaries in connection with this Section 6.9 and (ii) indemnify and hold harmless the Stockholders, the Company, its Subsidiaries and its Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Fee Letters)arrangement of the Financing and any information used in connection therewith, except to the extent suffered or incurred as a result of the gross negligence or willful misconduct of the Stockholders, the Company, its Subsidiaries and its or their Representatives.
Appears in 1 contract
Financing; Financing Cooperation. (a) Notwithstanding anything contained in this Agreement Parent shall, to the contraryextent the proceeds thereof are required to consummate the transactions contemplated hereby, Purchaser acknowledges and agrees that Closing is not conditioned upon Purchaser obtaining any financing. Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be deemed to be in breach of the covenant set forth in this Section 7.22 so long as Seller has acted in good faith to comply with the cooperation and assistance set forth in this Section 7.22. Purchaser shall use its reasonable best efforts to take, and to or cause to be taken, all actions and to do, and to or cause to be done, all things necessary or advisable to arrange the Debt Financing and to consummate the Debt Financing on the terms and subject to the conditions described in the Financing Commitment Letters (including the “flex” provisions therein) and Closing Date. Such actions shall not permit any amendment, supplement or modification to be made to, or any waiver by Purchaser of any provision or remedy under the Financing Commitment Letters, if such amendment, supplement, modification or waiver would (i) reduce the aggregate amount of net cash proceeds of the Financing as compared to the amount of such aggregate net cash proceeds contemplated by the Financing Commitment Letters as in effect on the date of this Agreement or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Financing in a manner that would (1) prevent, impede or delay the funding of the Financing or the consummation of the transactions contemplated by this Agreement or (2) adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Financing Commitment Letters. Purchaser shall promptly deliver to Seller copies of any amendment, supplement, modification or waiver to the Financing Commitment Letters. Without limiting the generality of the foregoing and except to the extent that Purchaser has completed an offering of debt or equity securities whose net cash proceeds replace amounts that were to be provided under the Financing Commitment Letters and which will be available to Purchaser for Closing, Purchaser shall use its include using reasonable best efforts to to: (i) maintain in effect the commitments Debt Commitment Letter (except as otherwise permitted in the definition of Financing Failure Event) until the transactions contemplated by this Agreement are consummated or this Agreement is terminated in accordance with its terms; (ii) cause senior management of Parent to participate in, and assist with, the preparation of rating agency presentations and meetings with rating agencies; (iii) satisfy on a timely basis (or, if deemed advisable by Parent, seek a waiver on a timely basis of) all Financing Conditions within its control; (iv) negotiate, execute and deliver Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions related thereto) or on such other terms no less favorable to Parent than those set forth in the Debt Commitment Letter; and (v) in the event that the conditions set forth in Section 6.1 and Section 6.2 and the Financing Conditions have been satisfied or, upon funding would be satisfied, enforce Parent’s rights under the Debt Commitment Letter in the event of a Financing Failure Event that prevents, impedes or delays the Closing. Parent shall use reasonable best efforts to give the Company prompt notice of any material breach or repudiation by any Financing Sources to the Debt Commitment Letters until Letter of which Parent obtains knowledge.
(b) Without limiting Parent’s other obligations under Section 5.17(a), if a Financing Failure Event occurs, Parent shall (i) promptly notify the Company of such Financing Failure Event and the reasons therefor, (ii) use reasonable best efforts to obtain alternative financing from alternative financing sources, in an amount sufficient, together with any other sources of funds available to Parent or Merger Sub (including cash and cash equivalents held by Parent and the Company and the proceeds of available lines of credit under existing revolving credit facilities or Parent), to consummate the transactions contemplated by this Agreement, as promptly as reasonably practicable following the occurrence of such Financing Failure Event (provided, however, that Parent shall not be required to obtain alternative financing which includes terms and conditions materially less favorable (taking into account any “market flex” provision), in the aggregate, to Parent, in each case relative to those in the Debt Financing being replaced) and (iii) obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing subject only to the Financing Conditions. Neither Parent nor any of its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace any of the Debt Commitment Letter or any definitive document relating to the Debt Financing; provided, however, that, notwithstanding the foregoing, Parent and its Affiliates shall be permitted to amend, modify, supplement, restate, assign, substitute, replace or terminate any of the Debt Commitment Letter or any definitive document relating to the Debt Financing if the effect of such amendment, modification, supplement, restatement, assignment, substitution, replacement or termination would not impose new or additional conditions or otherwise expand, amend or modify any of the Financing Conditions or other terms in a manner that would reasonably be expected to materially delay, impair or prevent the consummation of the transactions contemplated by this Agreement; provided, (ii) negotiate and enter into definitive agreements contemplated by further, that the Financing Parent may amend the Debt Commitment Letters on terms and conditions (includingLetter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as applicable, the “flex” provisions) no less favorable to Purchaser than those contained in the Financing Commitment Letters, (iii) satisfy (or have waived) all conditions and covenants in the Financing Commitment Letters that are within its control at or prior to Closing, and otherwise comply in all material respects with its obligations under the Financing Commitment Letters and (iv) except to the extent that Purchaser otherwise has cash resources at Closing to fund its payment obligations hereunder taking into account upfront and similar fees payable under the Financing (including to the extent any “flex” provisions are implemented), upon satisfaction of the conditions set forth in the Financing Commitment Letters consummate the Financing at or prior to Closingdate of this Agreement so long as such parties are creditworthy. Purchaser Parent shall keep Seller the Company reasonably informed of as to the status of its Parent’s efforts to arrange the Debt Financing.
(c) Prior to the Closing, the Company will, and will cause its Representatives to, use reasonable best efforts to provide to Parent all cooperation and take all corporate action required, as reasonably requested by Parent in connection with the arrangement, marketing and consummation of the Debt Financing (or replacement thereofprovided, however, that such requested cooperation does not unreasonably interfere in any material respect with the ongoing operations of the Company), including using reasonable best efforts to: (i) deliver to Parent such historical financial information regarding the Company as Seller may be reasonably requestrequested by Parent and that is customarily required for the Debt Financing, including (A) the financial statements referred to in Exhibit C to the Debt Commitment Letter, which financial statements need not be delivered prior to such financial statements being filed with the SEC on ▇▇▇▇▇ (provided that such financial statements are filed with the SEC on a timely basis) and such filing shall constitute delivery and (B) any other pertinent information as may be reasonably 68 requested by Parent to enable Parent to prepare, and shall provide Seller to reasonably cooperate with copies of all definitive documents related to Parent and the Financing andSources in the preparation of, as Seller may reasonably request from time to time, drafts customary pro forma financial statements of such documents posted to a lender syndicate groupParent that meet the requirements of Regulation S-X under the Securities Act and all other accounting rules and regulation of the SEC promulgated thereunder, provided that the fee letters may be redacted. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice (x) of any material breach or default by any party the Company’s obligation to any of provide information for such pro forma financial statements shall be limited to information about the Financing Commitment Letters or definitive agreements related to the Financing of which Purchaser becomes aware, Company and its Subsidiaries and (y) Parent and Merger Sub shall be solely responsible for the preparation of pro forma financial statements, including any adjustments incorporated into any such pro forma financial statements; (ii) to the receipt extent customarily required for the Debt Financing, make appropriate officers available to participate in a reasonable number of any notice or other communicationmeetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, Financing Sources and prospective Financing Sources, in each case, upon reasonable notice and at mutually agreeable dates and times; (iii) provide reasonable assistance (including using reasonable best efforts to obtain such materials or documents from any Financing source with respect to any the Company Representatives) in the preparation of customary offering documents, including customary bank information memoranda, authorization letters, lender presentations, rating agency materials, registration statements, prospectuses, offering memoranda, and private placement memoranda (1) material breach of any of its obligations including information required by Regulation S-X or Regulation S-K under the Financing Commitment Letters Securities Act (which, for the avoidance of doubt, shall not include financial statements or defaultinformation required by Rules 3-05, termination 3-09, 3-10 or repudiation 3-16 of Regulation S-X or information required by Item 402 of Regulation S-K or any party information that the Company is not required to any of prepare and file with the Financing Commitment Letters or definitive agreements related SEC, but would include such other information and data as are otherwise reasonably necessary in order to the Financing of any provisions of thereto or (2) material dispute or disagreements between or among any parties to any of the Financing Commitment Letters or definitive agreements related to the Financing receive customary “comfort” letters with respect to the obligation financial statements and data referred to fund the Financing or the amount of the Financing to be funded at Closing and in clause (zi) above)); (iv) if reasonably requested in writing by Parent at any time for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions and in the manner or from the sources contemplated by any of the Financing Commitment Letters or definitive agreements related least ten (10) Business Days prior to the Financing.
anticipated Closing, furnish at least four (b4) If any portion of Business Days prior to the Closing Date to Parent all customary and reasonable information regarding the Company that is required by regulatory authorities in connection with the Debt Financing becomes unavailable on under applicable “know your customer” and anti-money laundering rules and regulations, including the terms Patriot Act; (v) assist Parent in obtaining corporate, corporate family, credit, facility and conditions contemplated in the Financing Commitment Letters securities ratings from rating agencies; (vi) provide (including the “flex” provisions), Purchaser shall use its using reasonable best efforts to arrange obtain such documents from the Company Representatives) customary certificates, definitive documents, pay-off letters, “10b-5” representation letters and obtain alternative financing from alternative sources subject other customary documentation and items relating to conditions the Debt Financing as reasonably requested by Parent and, if requested by Parent, to cooperate with and assist Parent in obtaining such documentation and items; provided, however, that are not materially less favorable in the aggregate to Purchaser than those set forth in the Financing Commitment Letters, in an amount sufficient when combined with other available cash resources to consummate the Acquisition and the other transactions contemplated hereby as promptly as practicable after the occurrence of such event. Purchaser shall have the right from time to time to substitute other debt or equity financing for all or any portion no obligation of the Financing from Company under any agreement, certificate, document or instrument (other than any “10b-5” representation letter) shall be effective until the same or alternative financing sources, provided that any such substitution shall not expand upon in any material respect Closing; (vii) use reasonable best efforts to cause the conditions precedent or contingencies to the funding on the “Closing Date” independent accountants of the Financing as set forth in the Financing Commitment Letters in effect on the date hereof or reasonably be expected Company to cause any delay of the consummation of the transactions contemplated hereby. In such event, the term “Financing Commitment Letter” as used herein shall be deemed to include the new commitment letter entered into in accordance with this Section 7.22(b). Purchaser shall provide Seller with a copy of any new financing commitment letters obtained by Purchaser assistance and cooperation in connection with any such alternate financing as promptly as practicable following the execution thereof Debt Financing, including (other than redacted information consistent with the information redacted from the Fee Letters).1) participating in a reasonable number of drafting sessions and accounting due diligence sessions, (2) providing
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