Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply: (a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee; (b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder; (c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements; (d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease; (e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise; (f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises; (g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease; (h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder; (i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant; (j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control; (k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail; (l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee; (m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924; (n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and (o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction. (p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 4 contracts
Sources: Ground Lease, Ground Lease, Ground Lease
Financing. Tenant may seek (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall use reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a loan waiver thereof, on a timely basis all Financing Conditions to finance the Improvements extent within the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents to refinance the Improvements from time extent required to time during pay the Term. For such purpose onlyRequired Amount (after taking into account any cash on hand, Tenant shall have the right, with Landlordavailable lines of credit (including under Borrower’s prior written approvalexisting revolving credit and securitization facilities) and other sources of immediately available funds), which shall reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof; and (iv) in the event that the Offer Conditions have been satisfied or waived or, upon funding would be unreasonably withheldsatisfied, conditioned consummate the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing).
(b) From the date of this Agreement until the earlier of the Effective Time or delayedthe termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to assign all the Debt Commitment Letter of which Parent or part its Affiliates becomes aware; provided that none of Tenant’s interest under this Lease, as security Parent or Merger Sub shall be required to disclose or provide any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyinformation, the “Trust Deed”). Landlord’s written approval disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or denial shall which would be provided to Tenant within twenty in violation of any confidentiality obligation.
(20c) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenantthe Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result of the Company’s Interest breach of any provision of this Agreement or failure to secure a loan permitted under this satisfy the conditions set forth in Section 14.28.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the following shall apply:
Company thereof and the reasons therefor, (aii) Landlord will enter into use reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities on terms and conditions, taken as a Lender Recognition Agreement whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the Leasehold Mortgagee;
portion of the Debt Financing that remains available and any cash on hand, available lines of credit (bincluding under Borrower’s existing revolving credit and securitization facilities) The Landlord shall and other sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be required expected to sign any Trust Deed reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent to the Note, or otherwise become obligated thereunder;
(c) No funding of such lien, charge or encumbrance shall constitute a lien or encumbrance upon alternative financing on the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;Closing Date.
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before From the date of expiration this Agreement until the earlier of the Effective Time or the termination of this Lease;
(e) The Trust Deed imposes no financial obligations on the LandlordAgreement in accordance with Article IX, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
the Company, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt Financing Document if such amendment, modification, supplement, restatement, assignment, substitution or replacement would (mA) The Trust Deed shall provide that, prior impose additional conditions precedent or expand upon the conditions precedent to the institution funding of the Debt Financing, (B) reduce the amount of the Debt Financing or the net cash proceeds available from the Debt Financing to an amount that is less than the Required Amount (after taking into account any proceedings cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the satisfaction of the Financing Conditions) on the Closing Date or materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, including the Offer and the Merger, (D) materially adversely affect Parent’s ability to foreclose consummate the Trust Deed transactions contemplated by this Agreement, including the Offer and the Merger or (E) materially adversely impact the ability of negotiations Parent or any of its Affiliates’ to accept enforce their respective rights against the Debt Financing Sources or any of the other parties to the Debt Commitment Letters or the definitive agreements with respect thereto (clauses (A) through (E), each an assignment “Adverse Effect on Financing”); provided that Parent may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including (1) to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed the Debt Financing Documents as in effect on the date hereof and, in connection therewith, amend the economic and other arrangements with respect to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under the Debt Financing in order to obtain alternative sources of debt financing in lieu of the foreclosure all or a portion of the Trust DeedDebt Financing and/or (4) increase the aggregate amount of the Debt Financing, in each case, so long as such amendments would not be reasonably expected to result in an Adverse Effect on Financing. Upon request of the holder Company, Parent shall keep the Company informed in reasonable detail of the status of Parent’s efforts to arrange the Debt Financing. Any alternative, substitute or beneficiary thereof shall notify Landlord replacement debt financing obtained by Parent in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed accordance with this paragraph and the indebtedness which it secures at a purchase price equal previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include the full amount then owing under said Trust Deedfinancing contemplated by any Alternative Financing and references to “Debt Commitment Letter”, including accrued interest“Debt Fee Letters”, reasonable attorneys’ fee for “Debt Financing Documents”, “Debt Financing Entities”, “Debt Financing Sources”, or “Financing” shall include the holder documents (or beneficiarycommitments or financing sources, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements as applicable) in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof Alternative Financing to the extent Tenant is obligated under permitted by this Section 7.18, and such Alternative Financing shall be required to comply with the terms provisions of this Lease Agreement to restore the Improvements following same extent as the Debt Financing. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent or its Affiliates be required to pay any fees or any interest rates applicable to the Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)) or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such damage term contained in the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)). Parent and Merger Sub expressly acknowledge and agree that their obligations under this Agreement, including their obligations to consummate the Offer and the Merger, are not subject to, or destructionconditioned on, Parent’s or Merger Sub’s receipt of financing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (H&E Equipment Services, Inc.), Merger Agreement (United Rentals, Inc.), Agreement and Plan of Merger (H&E Equipment Services, Inc.)
Financing. Tenant may seek A. The City's issuance of the 2010 Note is authorized by and in accordance with the Resolution for the purpose of refinancing the CRA Projects and for other lawful purposes authorized by the Resolution. The debt service on the 2010 Note is not secured by any amounts pledged to obtain a loan the City hereunder.
B. In consideration of the payment of the Tax Increment Revenues by the Community Redevelopment Agency to finance the Improvements City to pay the portion of the 2010 Note which is attributable to the CRA Projects, the City has refinanced the cost of the CRA Projects through the issuance of the 2010 Note pursuant to the Resolution, and if necessary due to refinance the Improvements from time nature of such CRA Projects, any amounts required to time during be rebated to the Term. For such purpose only, Tenant shall have United States Treasury pursuant to the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part Internal Revenue Code of Tenant’s interest under this Lease1986, as security amended, in order to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds preserve the exclusion of interest on the 2010 Note from the gross income of the recipients thereof for federal income taxation purposes.
C. Upon execution of this Agreement, subject to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelySection 4 hereof, the “Trust Deed”). Landlord’s written approval Community Redevelopment Agency shall immediately deposit or denial shall cause to be provided deposited Tax Increment Revenues received by the Community Redevelopment Agency with the City in amounts sufficient to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then pay the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;"CRA Obligations"):
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, all amounts paid or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default payable pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice Resolution, by reason of any Trust Deed prior the issuance of the portion of the 2010 Note which is attributable to the execution and/or recording CRA Projects or necessary in order to preserve the exclusion of same by Tenant, and shall accompany such notice with a true copy interest on the portion of such Trust Deed and the 2010 Note secured therebywhich is attributable to the CRA Projects from the gross income of the recipients thereof for federal income taxation purposes; and
(oii) All insurance proceeds arising from damage or destruction all amounts necessary to reimburse the City for amounts expended by it to pay any of the Improvements items mentioned in clauses (i) or (ii) above and any interest thereon as prescribed in Section 2 hereof. Subject to Section 4 hereof, the obligation to transfer the Tax Increment Revenues to the City to pay the CRA Obligations specified in clauses (i) and (ii) above shall survive the date on which the 2010 Note is no longer due and owing under the Resolution. Any amounts received by the Community Redevelopment Agency in excess of the amount necessary to pay the CRA Obligations set forth above may be retained by the Community Redevelopment Agency and used for any lawful purpose of the Community Redevelopment Agency.
D. Subject to Section 4 hereof, in order to secure its indebtedness to the City for the CRA Obligations, the Community Redevelopment Agency hereby pledges to the City the Tax Increment Revenues which pledge shall be available for restoration thereof prior and superior to all other pledges thereof; provided, however, that the tax increment revenues which derive from any other redevelopment areas subsequently established by the Community Redevelopment Agency are not pledged in any manner to secure the CRA Obligations.
E. The Community Redevelopment Agency is presently entitled to receive the Tax Increment Revenues to be deposited in the Redevelopment Trust Fund, and has taken all action required by law to entitle it to receive such Tax Increment Revenues, and the Community Redevelopment Agency will diligently enforce the obligation of any "Taxing Authority" (as defined in Section 163.340(2), Florida Statutes) to appropriate its proportionate share of the Tax Increment Revenues and will not take, or consent to or adversely permit, any action which will impair or adversely affect the obligation of each such Taxing Authority to appropriate its proportionate share of such Tax Increment Revenues, impair or adversely affect in any manner the deposit of such Tax Increment Revenues in the Redevelopment Trust Fund, or the pledge of such Tax Increment Revenues hereby to the extent Tenant as described herein. The Community Redevelopment Agency and the City shall be unconditionally and irrevocably obligated so long as the 2010 Note is obligated under outstanding, and until the terms payment in full by the Community Redevelopment Agency of its indebtedness to the City for the CRA Obligations, to take all lawful action necessary or required in order to ensure that each such Taxing Authority shall appropriate its proportionate share of the Tax Increment Revenues as now or later required by law, and to make or cause to be made any deposits of Tax Increment Revenues or other funds required by this Lease to restore Agreement and the Improvements following such damage or destructionResolution.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) F. Subject to Section 4 hereof, the Community Redevelopment Agency does hereby authorize and consent to the exercise of full and complete control and custody of the fair market value Redevelopment Trust Fund, and any and all moneys therein, by the City for the purpose provided in the Resolution and this Agreement, including payment of the Improvements at the time the loan is entered intoCRA Obligations.
Appears in 3 contracts
Sources: Interlocal Agreement, Interlocal Agreement, Interlocal Agreement
Financing. Tenant may seek (a) Each of Company and Seller shall use its commercially reasonable efforts to obtain a loan provide such assistance (and shall cause its Subsidiaries and their respective Representatives to finance use their respective commercially reasonable efforts to provide such assistance) with the Improvements and to refinance the Improvements from time to time during the Term. For such purpose onlyDebt Financing (including, Tenant shall have the rightwithout limitation, with Landlordrespect to timeliness) as is reasonably requested by Acquiror. Such assistance shall include: (i) participation in meetings, drafting sessions and due diligence (including accounting due diligence sessions) and sessions with rating agencies, prospective lenders and investors; (ii) furnishing Acquiror and its financing sources with financial and other pertinent information regarding Company and its Subsidiaries as may be reasonably requested by Acquiror to consummate the Debt Financing, (iii) assisting Acquiror and its financing sources in the preparation of (A) an offering document for any portion of the Debt Financing and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts of Acquiror and its financing sources for any portion of the Debt Financing; (v) facilitating the pledging of collateral and perfection of liens security and, with respect to Company and its Subsidiaries, the providing of guarantees supporting the Debt Financing; (vi) taking such actions as promptly as practicable (but in any event, prior to the Termination Date) as are reasonably requested by Acquiror to facilitate the satisfaction on a timely basis of all conditions to obtaining the Debt Financing, including without limitation, delivery by Company’s chief financial officer (or other equivalent officer) on the Closing Date of customary solvency certificates with regard to Company and its Subsidiaries; provided that no obligation under any such certificate shall be effective until the Closing; (vii) delivering to Acquiror unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of Company and its Subsidiaries for each subsequent fiscal quarter and month after December 31, 2011 ended, in each case, at least 30 days before the Closing Date; and (viii) causing Company’s independent auditors to reasonably cooperate in connection with the Debt Financing. Company and each of its Subsidiaries hereby consents to the reasonable use of all of its logos, names, and trademarks in connection with the Debt Financing; provided that such logos, names and trademarks shall be used solely in a manner that is not intended or reasonably likely to harm or disparage Company or any of its Subsidiaries, or any of their reputation or goodwill. Nothing contained in this Section 7.3(a) or otherwise shall require Seller, Company or any of its Subsidiaries to be an issuer or other obligor with respect to the Debt Financing prior written approvalto the Closing Date. All material, which shall not be unreasonably withheld, conditioned non-public information regarding Company and its Subsidiaries or delayed, to assign all their respective Affiliates or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant Representatives pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial this Section 7.3(a) shall be kept confidential in accordance with the Confidentiality Agreement, except for disclosure to potential lenders and investors as required in connection with the Debt Financing subject to customary confidentiality protections; provided that neither Company nor any of its Subsidiaries shall be required to Tenant within twenty (20) Business Days of Tenant’s written requestpay any commitment or other similar fee or expense or incur any other liability in connection with the Debt Financing; and provided, which shall contain the information regarding the assignee’s financial strengthfurther, reputation and experience delineated in Section 12.1. If Landlord that such requested cooperation does not respond to unreasonably interfere with the request within twenty (20) Business Days, the request shall be deemed approvedongoing operations of Company and its Subsidiaries. In the event Tenant assigns that the Closing does not occur, Acquiror shall indemnify and hold harmless Seller, Company, its Subsidiaries and their respective Affiliates from and against any and all Losses suffered or incurred by them in connection with the arrangement of the Debt Financing, except to the extent any of the forgoing arise from the bad faith, gross negligence or willful and intentional misconduct of, or material breach of this Agreement by, Seller, Company or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2its Subsidiaries, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;as applicable.
(b) The Landlord Acquiror shall use its reasonable best efforts to obtain the Financing on and subject to the terms and conditions described in the Commitment Letters (or replacement financing obtained in compliance with this Section 7.3(b)), including using its reasonable best efforts to: (i) maintain in effect the Commitment Letters in the form attached to this Agreement (or replacement financing obtained in compliance with this Section 7.3(b)) in accordance with the terms thereof, (ii) cause the Equity Financing to be consummated at or prior to the Closing, (iii) satisfy on a timely basis all conditions to the Financing set forth in the Commitment Letters (or replacement financing obtained in compliance with this Section 7.3(b)), and use reasonable best efforts to cause such Persons providing the Financing to fund the Financing required to consummate the transactions contemplated by this Agreement; provided, however, that Acquiror shall not be required to sign pursue any Trust Deed or Action to enforce such rights under the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance Financings. Acquiror shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date give Seller prompt notice of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease any breach by any Leasehold Mortgagee as though party to the same had been performed by Tenant;
Commitment Letters or the Debt Financing Documents or (jii) The time available any event that would reasonably be expected to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, (A) delay or to obtain possession prevent the Closing or (B) make the timely funding of the leasehold interest shall be deemed extended by Financing or satisfaction of the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, conditions to obtaining the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease Financing less likely. Acquiror shall not be materially modifiedpermit any amendment, amended modification, supplement, restatement, assignment, substitution or surrendered replacement of any of the Commitment Letters (except upon termination pursuant to or replacement financing obtained in compliance with this Lease) Section 7.3(b)), without the prior written consent of each Leasehold Mortgagee;
Seller, if such amendment, modification, supplement, restatement, assignment, substitution or replacement (mi) The Trust Deed shall provide thatreduces the aggregate amount of the Financing that will be available on the Closing Date in order to consummate the transactions contemplated by this Agreement from that contemplated in the Debt Financing Commitment Letters or the Equity Financing Commitment Letter or (ii) imposes new or additional conditions or other terms or otherwise expands, prior amends or modifies any of the conditions to the institution receipt of the Financing or other terms in a manner that would reasonably be expected to (A) delay or prevent the Closing or (B) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur. For purposes of clarification, the foregoing shall not prohibit Acquiror from amending the Debt Financing Commitment Letter and any related fee letter to (i) add or replace lender(s), lead arrangers, book runners, syndication agents or similar entities (and Affiliates of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure foregoing) as a party thereto, (ii) make such other changes that would not adversely impact the ability of Acquiror to consummate the transactions contemplated by this Agreement or (iii) replace any Debt Financing Commitment Letter that is withdrawn by a financing source or replace any Debt Financing Commitment Letter that contains a condition precedent which Acquiror believes in good faith will not be satisfied. Acquiror shall keep Seller informed in reasonable detail of the Trust Deed, status of its efforts to arrange the holder or beneficiary thereof shall notify Landlord in writing Financing. In the event that such proceedings or negotiations are to be commenced, and Landlord shall have any portion of the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by Financing becomes unavailable on the terms and conditions set forth in the Commitment Letters, Acquiror shall promptly notify Seller and use its reasonable best efforts to obtain any such portion from alternative sources on terms not less beneficial, in the aggregate, to Acquiror and that will still enable Acquiror to consummate the transactions contemplated by this Agreement, as promptly as practicable. Acquiror shall deliver to Seller true and complete copies of this Lease shall contain the written agreement all Contracts or other arrangements pursuant to which any such source have committed to provide such alternative portion of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionFinancing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Pinafore Holdings B.V.), Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord Each of Parent, First Merger Sub and Second Merger Sub shall not be required use its reasonable best efforts to sign any Trust Deed or the Notetake, or otherwise become obligated thereunder;
(c) No such liencause to be taken, charge all actions and do, or encumbrance shall constitute a lien cause to be done, all things necessary or encumbrance upon advisable to arrange and obtain the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations Financing on the Landlordterms and conditions described in or contemplated by the Financing Commitments prior to when the conditions to the Mergers set forth in Article VIII (other than those conditions that by their terms must be satisfied at the Closing) are satisfied, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right including using reasonable best efforts to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance maintain in effect the Financing Commitments; (ii) satisfy on a timely basis all conditions and covenants applicable to Parent, First Merger Sub and Second Merger Sub in the Financing Commitments and otherwise comply with its obligations in each case thereunder; (iii) enter into definitive agreements with respect to the Financing Commitments on the terms and conditions (including the “market flex” provisions) contemplated thereby; (iv) in the event that all conditions in the Financing Commitments have been satisfied, cause the Persons providing Financing under this Lease the Financing Commitments to fund the Financing and consummate the Financing contemplated by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, such Financing Commitments on or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution date the Closing is required to occur pursuant to Section 2.02; and (v) enforce its rights under the Financing Commitments, except, in the case of clauses (i) through (v) above, to the extent (and solely to the extent) Parent or one or more of its Subsidiaries has issued in one or more offerings any proceedings to foreclose the Trust Deed debt or of negotiations to accept an assignment equity securities in lieu of the foreclosure Financing on or prior to the Closing Date or otherwise will have sufficient cash at the Closing, in each case in an amount such that Parent, First Merger Sub, Second Merger Sub, the Surviving Corporation and the Surviving Entity will be able to satisfy all of the Trust Deedpayment obligations of Parent, First Merger Sub, Second Merger Sub, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed Surviving Corporation and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements Surviving Entity contemplated hereunder in connection with any Improvementsthe Closing. Notwithstanding the foregoing, including but not limited in no event shall Parent be required to construction loans, long term loans and refinancing permitted by pursue litigation against the terms Financing Sources in respect of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty clause (30a) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionotherwise.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 3 contracts
Sources: Merger Agreement (Grail, LLC), Merger Agreement (Grail, LLC), Merger Agreement (Illumina, Inc.)
Financing. Tenant may seek The Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to obtain a loan to finance the Improvements cause its and to refinance the Improvements from time to time during the Term. For such purpose onlyits Subsidiaries’ officers, Tenant shall have the rightdirectors, with Landlord’s prior written approvalemployees, which shall not be unreasonably withheldagents, conditioned or delayedand other representatives (collectively, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold MortgageeRepresentatives”) which has advanced such funds to, provide all cooperation that is reasonably requested by Parent to Tenant assist Parent and the Merger Subs in the arrangement of any third party debt financing (including any debt capital markets financing) for the purpose of funding the payment of the Aggregate Cash Amount and the repayment, redemption, purchase, defeasance or discharge of any outstanding Indebtedness for borrowed money of the Company and its Subsidiaries (including pursuant to a promissory note and a trust deed or mortgage (collectivelyDebt Offer, the Existing Credit Facility Terminations or a CMBS Transaction)), and the payment of fees and expenses incurred in connection therewith (the “Trust DeedFinancing”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans(i) as promptly as reasonably practicable, long term loans furnishing to Parent and refinancing permitted the Financing Sources such financial and other information relating to the Company customary or reasonably necessary for the completion of such Financing to the extent reasonably requested by Parent to assist in preparation of customary offering or information documents to be used for the terms of this Lease shall contain the written agreement completion of the Leasehold Mortgagee Financing (“Financing Offering Materials”); (ii) using commercially reasonable efforts to cooperate with the marketing efforts of Parent and the Financing Sources, including using commercially reasonable efforts to participate in a reasonable number of requested meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and the Company’s senior management and Representatives, presentations, roadshows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing; (iii) delivering (A) audited consolidated balance sheets and related audited statements of comprehensive income (loss), stockholders’ equity and cash flows of the Company (the “Audited Annual Financials”) for each of the three most recently ended fiscal years that Landlord shall be notified by have ended at least 90 days (or 75 days in the Leasehold Mortgagee within thirty (30) days case of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(sfiscal year ended after December 31, 2013) prior to initiation the Closing Date (and the audit reports for such financial statements shall not be subject to any “going concern” qualifications) and (B) unaudited consolidated balance sheets and related unaudited statements of foreclosure actions comprehensive income (loss) and cash flows of the Company (the “Quarterly Financials”) for each subsequent interim quarterly period that has ended at least 40 days prior to the Closing Date, in the case of each of clauses (iii)(A) and (iii)(B), meeting the requirements of Regulation S-X under the Exchange Act as would be applicable to an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q, as applicable (it being further agreed that (x) the Company shall deliver to Parent the consolidated financial statements of the Company described in this clause (iii) in respect of any such fiscal period (other than Audited Annual Financials for its 2011 and 2012 fiscal years) no later than the filing date upon which the corresponding consolidated financial statements of a notice the Operating Subsidiary for such fiscal period are filed with the SEC and (y) the Company shall deliver to Parent the Audited Annual Financials for its 2011 and 2012 fiscal years no later than the date upon which it delivers the Audited Annual Financials for its 2013 fiscal year); (iv) using commercially reasonable efforts to cause the Company’s independent accountants to provide reasonable assistance to Parent consistent with their customary practice (including to consent to the use of default their audit reports on the consolidated financial statements of the Company and its Subsidiaries in any materials relating to the Financing or in connection with any filings made with the SEC or pursuant to the California Civil Code Section 2924;
Securities Act or the Exchange Act, and to provide any “comfort letters” necessary and reasonably requested by Parent in connection with any debt capital markets transaction comprising a part of the Financing, in each case, on customary terms and consistent with their customary practice); and (nv) Tenant shall give Landlord written notice to the extent that the Company or any of any Trust Deed its Subsidiaries are to be party to the Financing following the occurrence of the Effective Time, (x) using commercially reasonable efforts to obtain customary legal opinions and executing and delivering customary closing certificates and documents at the Closing as may be reasonably requested by Parent in connection with the Financing, (y) using commercially reasonable efforts to facilitate the execution and delivery at the Closing of definitive documents (including loan agreements, customary guarantee documentation (if applicable) and other applicable loan documents) related to the Financing, and (z) as long as such information is requested by the Financing Sources at least ten (10) Business Days prior to the execution and/or recording Closing Date, providing to the Financing Sources, at least five (5) Business Days prior to the Closing Date, all customary and reasonable documentation and other information required by regulatory authorities with respect to the Company under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act of same by Tenant2001, and as amended; provided, however, that nothing in this Section 5.14 shall accompany require such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof cooperation to the extent Tenant it would (A) unreasonably disrupt or interfere with the business or operations of the Company or any of its Subsidiaries or the conduct thereof or (B) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with the Financing, prior to the occurrence of the Effective Time (except to the extent Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor), or incur any liability in connection with the Financing that is obligated under effective prior to the terms occurrence of this Lease the Effective Time, or (C) subject to restore Section 5.15 below, require the Improvements Company or any of its Subsidiaries to enter into any instrument or agreement, or agree to any change or modification to any instrument or agreement, that is effective prior to the occurrence of the Effective Time or that would be effective if the Effective Time does not occur. Without limiting the foregoing proviso, Parent agrees, promptly upon request, to reimburse the Company and its Subsidiaries for all of their reasonable out-of-pocket costs, fees and expenses (including fees and disbursements of counsel) in connection with the Financing promptly following such damage or destruction.
the incurrence thereof (p) No loan may be limited, in an amount which exceeds seventy-five percent the case of any costs, fees and expenses for preparing the consolidated financial statements of the Company described in clause (75%iii) of the fair market value preceding sentence, to the incremental costs, fees and expenses for preparing such financial statements in excess of the Improvements costs, fees and expenses of preparing the corresponding financial statements of the Operating Subsidiary). Parent shall indemnify and hold harmless the Company, the Significant Stockholders, its and their respective Affiliates, and its and their respective Representatives from and against any and all liabilities, obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties of any type actually suffered or incurred by any of them in connection with any action taken, or cooperation provided, by the Company or its Subsidiaries or any of their respective Representatives at the time request of Parent pursuant to this Section 5.14 and/or the loan provision of information utilized in connection therewith (other than information provided in writing by the Company or its Subsidiaries specifically for use in connection therewith); in each case, except to the extent that any such obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties, fees, costs or other liabilities are suffered or incurred as a result of the Company’s or its Representatives’ gross negligence, bad faith, willful misconduct or material breach of this Agreement, as applicable. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing, provided such logos are used solely in a customary manner that is entered intonot intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and on such other customary terms and conditions as the Company shall reasonably impose. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative financing, is not a condition to the Closing and reaffirm their obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any alternative financing, subject to fulfillment or waiver of the conditions set forth in Article VI. Notwithstanding anything to the contrary provided herein or in the Confidentiality Agreement, Parent shall be permitted to share all information subject to such agreements with its potential financing sources, subject to customary confidentiality undertakings by such potential financing sources with respect thereto.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Sysco Corp), Merger Agreement (Us Foods, Inc.)
Financing. Tenant may seek (a) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain a loan the proceeds of the Financing on the terms and conditions described in the Commitment Letter (or the proceeds of permanent Financing in lieu thereof) (taking into account any “flex provisions” set forth in the related fee letters) on or prior to finance the Improvements date upon which the Merger is required to be consummated pursuant to the terms of this Agreement, including by: (i) maintaining in effect the Commitment Letter (provided, that the Commitment Letter may be amended, supplemented, modified and replaced as permitted by this Section 6.11 (a)), (ii) negotiating and entering into Definitive Financing Agreements with respect to refinance the Improvements from time to time during Financing consistent with the Term. For such purpose only, Tenant shall have terms and conditions contained in the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this LeaseCommitment Letter (including, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelynecessary, the “Trust Deed”). Landlord’s written approval or denial shall flex” provisions contained in any related fee letter) and (iii) satisfying (or, if deemed advisable by Parent, obtaining the waiver of) on a timely basis all conditions (other than those conditions that by their nature are to be provided to Tenant within twenty (20satisfied at the Closing) Business Days of Tenant’s written request, which shall contain in the information regarding Commitment Letter and the assignee’s financial strength, reputation Definitive Financing Agreements and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approvedcomplying with its obligations thereunder. In the event Tenant assigns that all conditions contained in the Commitment Letter (other than the consummation of the Merger and those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived, Parent shall use reasonable best efforts to enforce its rights under the Commitment Letter, including to cause the Financing Sources to fund on the Closing Date the Debt Financing; provided, that in no event shall Parent be obligated to bring any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord Legal Proceedings against any Financing Sources. Parent shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of the Company permit any amendment or modification to, replacement of, or any waiver of any material provision or remedy under, the Commitment Letter if such amendment, modification, replacement, waiver or remedy would reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that no consent from the Company shall be required for (i) any amendment, replacement, supplement or modification of the Commitment Letter that adds lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof, (ii) implementation or exercise of any “flex” provisions provided in any related fee letter as in effect as of the date hereof or (iii) any amendment to, or replacement of or supplement or modification to, the Commitment Letter or Definitive Financing Agreement so long as such action would not be prohibited by the foregoing clause. Parent shall promptly notify the Company of any such amendment, modification, waiver or replacement and deliver the Company a copy thereof.
(b) Without limiting the generality of Section 6.11(a), if Parent believes it will incur any Financing in connection with the Closing, on not less than five Business Days’ prior written notice of the initial request therefor, the Company agrees to cooperate with Parent, as reasonably requested by Parent, to obtain such Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries) including by using (and by causing its Subsidiaries and its Representatives to use) reasonable best efforts to:
(i) cause the management of the Company, in each Leasehold Mortgageecase, with appropriate seniority and expertise, to participate, at reasonable times and upon reasonable advance notice, in a reasonable number of meetings, presentations, roadshows, drafting sessions, sessions with rating agencies, conference calls with prospective lenders of and investors in the Financing, and due diligence sessions;
(mii) The Trust Deed shall provide that, prior subject to the institution confidentiality undertakings set forth in the Confidentiality Agreement, provide reasonable and customary assistance with the preparation of materials relating to the Company and its Subsidiaries in connection with the transactions contemplated by this Agreement for rating agency presentations, marketing materials, offering documents and other documents necessary for any proceedings to foreclose Financing, and provide reasonable cooperation with the Trust Deed or of negotiations to accept an assignment in lieu due diligence efforts of the foreclosure Financing Sources with respect to the Company and its Subsidiaries during normal business hours upon reasonable advance notice;
(iii) furnish to Parent (A) the Financing Deliverables and (B) the Financing Information (including any updates to the Financing Information so that marketing materials used in any Financing do not contain any untrue statement of a material fact or omit to state a fact necessary to make the Trust Deedstatements contained therein not misleading as a result of a misstatement or omission with respect to the Financing Information, other than, in each case, with respect to information supplied by or on behalf of Parent or Merger Sub);
(iv) cause its independent auditors to provide reasonable and customary cooperation in connection with the holder or beneficiary thereof shall notify Landlord in writing Financing, including by providing the Specified Auditor Assistance and signing customary management representation letters to such auditors so that such proceedings or negotiations are Specified Auditor Assistance can be provided;
(v) assist Parent with Parent’s preparation of pro forma financial statements and projections by providing the Financing Information to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of used in preparing such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements pro formas that are requested in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by Financing or that would customarily be included in the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant marketing materials with respect to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured therebyFinancing; and
(ovi) All insurance proceeds arising from damage or destruction furnish to Parent other documents of the Improvements shall be available for restoration thereof Company and its Subsidiaries reasonably requested by Parent in connection with any Financing that includes an offering of securities in order to allow such Financing Sources to establish a “due-diligence” defense; and
(vii) satisfy the conditions precedent set forth in the Debt Letters or any Definitive Financing Agreement to the extent Tenant the satisfaction of such conditions requires the cooperation of or is obligated under within the terms control of this Lease to restore the Improvements following such damage or destructionCompany and its Subsidiaries.
(pc) No loan The Company hereby consents to the use of its and each of its Subsidiaries’ logos in connection with the Financing; provided that such logos are used solely in a manner that is not intended to, and is not reasonably expected to, harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries and their respective marks, products, services, offerings or Intellectual Property Rights. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including attorney’s fees) incurred by the Company and any of its Subsidiaries and their respective Representatives in connection with providing the assistance contemplated by this Section 6.11. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs, expenses (including reasonable attorney’s fees), awards, judgments, penalties and other Liabilities actually suffered or incurred by any of them in connection with the Financing and any information used in connection therewith (other than any information provided in writing by the Company or any of its Subsidiaries expressly for use in connection therewith) or in connection with providing the assistance contemplated by this Section 6.11, except to the extent arising from bad faith, willful misconduct or fraud of the Company, its Subsidiaries or their respective Representatives.
(d) Notwithstanding anything to the contrary contained in this Section 6.11, (i) none of the Company or any of its Subsidiaries or their respective Representatives shall be required to take or permit the taking of any action or provide any assistance that would (A) unreasonably interfere with the business or operations of the Company or any of its Subsidiaries, (B) cause any representation or warranty or covenant of the Company in this Agreement to be breached by the Company or any of its Subsidiaries, (C) require the Company or any of its Subsidiaries or their respective Affiliates to pay (or agree to pay) any fees, or reimburse any expenses prior to the Closing for which it is not promptly reimbursed, or otherwise incur any other obligations (other than any obligations under customary authorization letters, management representation letters or other documents delivered to the Company’s independent registered accounting firm in connection with the Specified Auditor Assistance) or give any indemnities prior to the Closing that are not contingent on the Closing, (D) cause any director, officer, employee or shareholder of the Company or any of its Subsidiaries to incur any personal Liability, (E) conflict with the Charter Documents of the Company or any of its Subsidiaries or any Applicable Laws, (F) result in the breach of, or default under, any Material Contract or (G) require the Company or any of its Subsidiaries to prepare separate financial statements for the Company or any of its Subsidiaries or change any fiscal period or prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice; and (ii) none of the Company or any of its Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Financing; provided, however that this clause (ii) shall not prohibit the adoption or execution of any resolutions or consents effective no earlier than the Closing Date (after giving effect to the Closing) by any Person that will remain or will become an officer or director of the Surviving Company as of the Effective Time. Nothing in this Section 6.11 shall require the Company or any of its Subsidiaries or their respective Representatives to disclose any information to Parent, Parent’s Representatives or the Financing Sources if such disclosure would (x) violate any Applicable Law or Contract or (y) jeopardize the attorney-client privilege, work product doctrine or other legal privilege held by the Company or any of its Subsidiaries. If the Company or any of its Subsidiaries does not provide or cause its Representatives to provide such access or such information in reliance on the immediately preceding sentence, then the Company shall (1) provide a written notice to Parent stating that it is withholding such access or such information and (2) reasonably cooperate to provide the applicable access or information in a way that would not violate such Applicable Law or Contract or jeopardize such privilege.
(e) Parent acknowledges and agrees that, other than reasonable out-of-pocket costs and expenses subject to reimbursement pursuant to Section 6.11(c), none of the Company or any of its Subsidiaries or any of their respective Representatives shall have any responsibility for, or incur any Liability to, any Person under any Financing that Parent may be obtain in an amount which exceeds seventy-five percent connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 6.11.
(75%f) Notwithstanding any other provision set forth herein or anything to the contrary contained in the Confidentiality Agreement, Parent or any of its Affiliates may disclose Confidential Information (as defined in the Confidentiality Agreement) of the fair market value Company and its Subsidiaries to the Financing Sources (other than any sensitive information that the Company specifically designates in writing may not be disclosed), so long as the Financing Sources are subject to confidentiality undertakings under a binding written confidentiality commitment to Parent that are at least as restrictive as those applicable to Parent with respect to the Company (except that such confidentiality agreement need not contain any explicit or implicit standstill provision).
(g) Notwithstanding anything in this Agreement to the contrary, the parties hereto acknowledge and agree that the provisions contained in this Section 6.11 represent the sole obligations of the Improvements at Company, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the time arrangement of any financing (including the loan is entered intoFinancing) to be obtained by Parent or any of its Subsidiaries with respect to the transactions contemplated by this Agreement and no other provision of this Agreement shall be deemed to expand such obligations. Notwithstanding anything to the contrary contained herein, in no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Parent, Merger Sub or any of their respective Subsidiaries be a condition to any of Parent’s or Merger Sub’s obligations under this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Gilat Satellite Networks LTD), Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Gilat Satellite Networks LTD)
Financing. Tenant may seek (a) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain a loan funds sufficient to finance fund the Improvements Merger Consideration and the other Merger Amounts on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, unless and until Parent has (I) unrestricted and uncommitted cash on hand that will be available on the Closing Date to fund the Merger Amounts plus (II) cash deposited in one or more escrow accounts designated for use to pay the Merger Amounts (provided that the terms of the escrow agreement governing such escrow arrangement do not impose conditions precedent or contingencies to the release of such cash for purposes of funding the Merger Amounts that are more onerous than the conditions set forth in the Commitment Letter in effect as of the date hereof or that would reasonably be expected to (1) materially delay, prevent or impede the consummation of the Merger, (2) make the funding of the availability of the cash in such escrow (or satisfaction of the conditions to the release of such cash) less likely to occur than the funding of the Financing pursuant to the Commitment Letter as in effect as of the date hereof or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights in respect of the escrowed cash in any material respect as compared to its ability to enforce its rights against the other parties to the Commitment Letter as in effect as of the date hereof (any cash that satisfies the requirement of the immediately preceding clause (I) or clause (II), “Funding Cash”) in an amount sufficient to fund the Merger Amounts in full on the Closing Date , Parent and Merger Sub shall, subject to the terms of this Agreement (including the rights of Parent and Merger Sub in this Section 6.11(a) to obtain Permitted Alternative Financing), use their reasonable best efforts to take, or cause to be taken, all actions and use their reasonable best efforts to do, or cause to be done, all things necessary or advisable to arrange the Financing and to refinance consummate the Improvements Financing at or prior to the Effective Time, including using reasonable best efforts to (i) maintain in effect the Commitment Letter; (ii) negotiate, execute and deliver definitive documentation for the Financing that reflects the terms contained in the Commitment Letter (subject to any “market flex” provisions included in the Fee Letter or any fee letter relating to a Required Alternative Financing); (iii) satisfy (or seek a waiver of) on a timely basis all of the conditions precedent set forth in the Commitment Letter and any definitive document related to the Financing that are within the control of, Parent and Merger Sub and comply with their obligations thereunder; (iv) in the event that the conditions set forth in Section 7.01 and Section 7.02 and the conditions precedent set forth in the Commitment Letter have been satisfied or, upon funding would be satisfied, enforce their rights under the Commitment Letter and any definitive documentation for the Financing and (v) in the event that the conditions set forth in Section 7.01 and Section 7.02 have been satisfied or, upon release of any Funding Cash from escrow, would be satisfied, enforce their rights under all escrow arrangements with respect to any Funding Cash. Parent and Merger Sub shall have the right from time to time during the Term. For such purpose onlyto amend, Tenant shall have the rightrestate, with Landlord’s prior written approvalreplace, which shall not be unreasonably withheldsupplement or otherwise modify, conditioned or delayed, to assign all or part waive any of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyits rights under, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns Commitment Letter and/or substitute other debt financing for all or any portion of Tenant’s Interest to secure the Financing from the same and/or alternative financing sources (a loan permitted under this Section 14.2“Permitted Alternative Financing” and, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement together with the Leasehold Mortgagee;
any Required Alternative Financing as described in clause (b) The Landlord shall not be required below, each an “Alternative Financing”); provided that any such amendment, restatement, supplement, replacement or other modification to sign or waiver of any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession provision of the leasehold interest Commitment Letter shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leasenot, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of the Company, (A) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount, unless the Financing is increased by a corresponding amount) to be funded at or prior to Closing such that the aggregate amount of Financing plus the Funding Cash of the Parent as of the date of any such amendment, restatement, supplement, replacement, modification or waiver, would not be sufficient to pay the Merger Consideration and the other Merger Amounts or (B) impose new or additional conditions precedent or contingencies to the Financing or otherwise amend, modify, or expand any conditions precedent to the funding of the Financing, or any other term or condition of the Commitment Letter or the Financing, in each Leasehold Mortgagee;case, in a manner that would reasonably be expected to (1) materially delay, prevent or impede the consummation of the Merger, (2) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter or the definitive agreements with respect thereto, in any material respect; provided, further, that Parent and Merger Sub may amend, restate, replace, supplement or otherwise modify the Commitment Letter on one or more occasions to add additional arrangers, bookrunners, agents and lenders in accordance with the terms of the Commitment Letter (but not to make any other changes other than to the extent otherwise permitted under this Section 6.11(a)). For purposes of this Agreement, the definition of “Commitment Letter” shall include any amendment, restatement, supplement or other modification or waiver thereto, or any replacement thereof, in each case permitted by this Section 6.11(a), and the definition of “Financing” shall include any Alternative Financing.
(mb) The Trust Deed Unless Parent then has Funding Cash in an amount sufficient to fund the Merger Amounts in full on the Closing Date, if any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (subject to any “market flex” provisions included in the Fee Letter and other than on account of any Permitted Alternative Financing having been completed) other than due to the failure of any condition set forth in Section 7.01 or Section 7.02 of this Agreement, each of Parent and Merger Sub shall (A) use its reasonable best efforts to obtain alternative debt financing from the same or alternative sources as promptly as practicable following the occurrence of such event in an amount, together with any Funding Cash of the Parent as of such date, that will still enable Parent and Merger Sub to pay the Merger Consideration and any other Merger Amounts, and which does not include any conditions to the consummation of such alternative financing that are more onerous than the conditions set forth in the Commitment Letter as in effect as of the date hereof (a “Required Alternative Financing”) and (B) promptly notify the Company of such unavailability and the reason therefor.
(c) Parent shall, upon reasonable request, keep the Company informed in reasonable detail of the status of its efforts to arrange the Financing and shall provide that, prior to the institution Company copies of any proceedings to foreclose the Trust Deed amendment, restatement, replacement, supplement or of negotiations to accept an assignment in lieu modification of the foreclosure Commitment Letter and all executed final definitive documents relating to the Financing (excluding and redacting any provisions related solely to fees, pricing caps, economic and “market flex” terms and any other provisions in any fee or engagement letters that are customarily redacted in connection with transactions of this type and that would not in any event adversely affect the conditionality, enforceability, availability, termination or amount of the Trust DeedFinancing). Without limiting the generality of the foregoing, Parent shall give the Company prompt written notice, which shall include reasonably detailed information regarding the applicable circumstances referenced in the following clauses: (i) if Parent becomes aware of any actual or threatened breach or default by any party to the Commitment Letter or any definitive document related to the Financing, if such breach or default would reasonably be expected to result in a delay of the Closing Date or unavailability of any of the Financing; (ii) of the receipt by it of any written notice or other written communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Commitment Letter or any definitive document related to the Financing or any provisions of the Commitment Letter or any definitive document related to the Financing, or (B) material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing with respect to the obligation to fund any portion of the Financing or the amount of the Financing to be funded at Closing, in each case if such breach, default, termination, repudiation, dispute or disagreement would reasonably be expected to result in a delay of the Closing Date or unavailability of any of the Financing; (iii) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letter (subject to the “market flex” provisions included in the Fee Letter or any fee letter relating to any Alternative Financing) or the definitive documents related to the Financing unless Parent has Funding Cash as of such date in an amount sufficient to fund the Merger Amounts in full on the Closing Date, and (iv) upon consummating the Financing. As soon as reasonably practicable, after the date the Company delivers Parent or either Merger Sub a written request, Parent and Merger Sub shall provide any additional information reasonably requested by the Company relating to any circumstance referred to in clause (i), (ii), (iii) or (iv) of the immediately preceding sentence.
(d) From the date hereof until the earlier of (i) the Closing Date and (ii) termination of this Agreement pursuant to Section 8.01, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commencedCompany shall, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiarycause its Subsidiaries to, and applicable statutory costs shall use its reasonable best efforts to cause its and allowances if any foreclosure proceedings shall have commenced. All loan agreements their respective Representatives to, use reasonable best efforts to provide, Parent and Merger Sub such customary cooperation as may be reasonably requested by Parent in connection with any ImprovementsFinancing (which, including but not limited to construction loansfor purposes of this clause (d), long term loans and refinancing permitted shall include any capital markets financing sought by Parent in replacement of all or any portion of the Financing contemplated by the Commitment Letter in compliance with the terms of this Lease shall contain Agreement), including, without limitation, (A) participating (including by teleconference or virtual meeting platforms) (including by making members of senior management, certain representatives and certain non-legal advisors, in each case with appropriate seniority and expertise, available to participate), upon reasonable advance notice, in a reasonable number of meetings, presentations, non-deal and investor road shows, rating agency presentations and drafting sessions, and participating in reasonable and customary due diligence, in each case, with or by the written agreement Financing Sources (or prospective lenders or investors in any Financing) at mutually agreed times and places, (B) furnishing Parent and the Financing Sources, as promptly as reasonably practicable, with the Required Information, (C) assisting Parent and the Financing Sources in the preparation of (I) customary offering documents, syndication documents and materials (including assistance in creating usual and customary “public versions” of the Leasehold Mortgagee foregoing), including confidential information memoranda, private placement memoranda, offering memoranda, prospectuses, lender and investor presentations, rating agency presentations, business and financial projections and similar documents and materials (which may incorporate by reference periodic and current reports filed by the Company with the SEC), in connection with any Financing (all of the foregoing, collectively, the “Offering Documents”), including providing the “MD&A” and business description to be contained therein, and providing customary authorization and representation letters with respect thereto, and (II) materials for any Offering Documents, including business projections and financial statements (including assisting Parent in preparing pro forma financial statements; provided that Landlord neither the Company nor any of its Subsidiaries or Representatives shall be notified responsible in any manner for any pro forma financial information or pro forma adjustments relating to the Merger and the consideration therefor that is required to be made to the historical information for such pro forma financial information) and identifying any portion thereof as containing material, non-public information relating to the Company and its Subsidiaries or their respective securities, (D) reasonably cooperating with the marketing and syndication efforts of Parent, Merger Sub and any Financing Sources for any portion of any Financing, including cooperation in connection with the obtaining of ratings, (E) using its reasonable best efforts to cause its current independent accountants to provide customary assistance and cooperation in any Financing, including using reasonable best efforts to cause such accountants to (I) participate in a reasonable number of drafting sessions and accounting due diligence sessions upon reasonable advance notice and at mutually agreed times and places, (II) provide any necessary customary written consents to use their audit reports relating to the Company and to be named as an “Expert” in any document related to any Financing and (III) provide any customary “comfort letters” (including customary negative assurance comfort, including change period comfort), (F) executing and delivering as of (but not before) the Effective Time, and reasonably assisting Parent with Parent’s preparation of, definitive financing documents, including credit agreements, indentures, intercreditor agreements, pledge and security documents, and certificates (including borrowing base certificates), or other documents, to the extent reasonably requested by Parent and otherwise facilitating the pledging of, and granting, recording and perfection of security interests in share certificates, securities and other collateral to secure any Financing; provided that the effectiveness of any definitive documentation executed by the Leasehold Mortgagee within thirty (30) days Company or any of any default by Tenant on its Subsidiaries and any such loan and pledge, grant, recordation or perfection shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant subject to the California Civil Code Section 2924;
consummation of the Merger, (nG) Tenant shall give Landlord written notice of furnishing Parent and any Trust Deed Financing Sources promptly, and in any event at least four (4) Business Days prior to the execution and/or recording of same Closing Date, with all documentation and other information relating to the Company and its Subsidiaries required by Tenantapplicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, and shall accompany such notice with a true copy of such Trust Deed and including, without limitation, the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof PATRIOT Act, in each case, to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following that such damage or destruction.
documentation and information has been reasonably requested in writing (p) No loan which may be in an amount which exceeds seventy-five percent by email) at least ten (75%10) Business Days prior to the Closing Date, (H) informing Parent if the chief executive officer, chief financial officer, treasurer or controller of the fair market value Company has knowledge of any facts as a result of which a restatement of any of the Improvements at Company’s financial statements, in order for such financial statements to comply with GAAP, is necessary, (I) updating any Required Information (including financial statements) provided to Parent or the time Financing Sources as may be necessary so that such Required Information qualifies as Compliant prior to the loan is entered into.Closing and (J) facilitating the arrangement by Parent of approval of the Financing by the post-Closing boards of directors or equivalent governing bodies of Subsidiaries of the Company, provided that (1) no Persons other than Persons who are directors or equivalent members of the boards of direct
Appears in 3 contracts
Sources: Merger Agreement (CMC Materials, Inc.), Merger Agreement (CMC Materials, Inc.), Merger Agreement (Entegris Inc)
Financing. Tenant may seek (a) Parent shall use its reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to arrange the Improvements from time Debt Financing on the terms and conditions described in the Debt Financing Commitment (provided that Parent and Merger Sub may replace or amend the Debt Financing Commitment to time during add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Term. For such purpose onlyDebt Financing Commitment as of the date hereof, Tenant shall have or otherwise so long as the rightterms would not materially adversely impact the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby), with Landlord’s prior written approvalincluding using reasonable best efforts to (i) maintain in effect the Debt Financing Commitment, which shall not be unreasonably withheld, conditioned or delayed, (ii) satisfy on a timely basis all conditions applicable to assign all or part of Tenant’s interest under this Lease, as security Parent and Merger Sub to any Institutional Lender obtaining the Debt Financing set forth in the Debt Financing Commitment (a “Leasehold Mortgagee”) which has advanced such funds to Tenant including by consummating the equity financing pursuant to a promissory note the terms of the Equity Financing Commitments), (iii) enter into definitive agreements with respect thereto on the terms and a trust deed conditions contemplated by the Financing Commitments or mortgage on other terms that would not adversely impact the ability or likelihood of Parent or Merger Sub to consummate the transactions contemplated hereby and (collectively, iv) consummate the “Trust Deed”). Landlord’s written approval Financing at or denial shall be provided prior to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1Closing. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent shall use its reasonable best efforts to secure arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; provided, that such alternative financing shall be on terms and conditions materially no less favorable than those provided in the Debt Financing Commitment, or otherwise on terms and conditions acceptable to Parent. Parent shall give the Company prompt notice of any material breach by any party to the Financing Commitments, of which Parent or Merger Sub becomes aware, or any termination of the Financing Commitments. Parent shall keep the Company informed on a loan permitted under this Section 14.2, then reasonably current basis in reasonable detail of the following shall apply:
status of its efforts to arrange the Debt Financing and provide copies of all documents related to the Debt Financing (aother than any fee letters and ancillary documents subject to confidentiality agreements) Landlord will enter into a Lender Recognition Agreement to the Company. The Company hereby consents to the use of its and its Subsidiaries’ names and logos in connection with the Leasehold Mortgagee;Debt Financing.
(b) The Landlord Prior to the Closing, the Company shall not be required provide to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trusteeParent and Merger Sub, and any lien which it createsshall cause its Subsidiaries to, and shall expire on or before use its reasonable best efforts to cause the date respective officers, employees and advisors, including legal and accounting, of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the LandlordCompany and its Subsidiaries to, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect provide to Parent and Merger Sub all cooperation reasonably requested by Parent that is necessary in connection with the Landlord’s right Financing, including using reasonable best efforts to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) participate in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) provide assistance in preparation of confidential information memoranda (including execution and delivery of a customary representation letter) and other materials to be used in connection with obtaining financing contemplated by the Debt Financing Commitment and all information (including financial information) customarily contained therein, (iii) provide assistance in the preparation for, and participate in, meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies, (iv) enter into a loan agreement and related documents (including pledge and security documents), (v) execute and deliver customary certificates, legal opinions or other documents reasonably requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters) and otherwise reasonably facilitate the pledging of collateral contemplated by the Debt Financing Commitment (including taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and to conduct the appraisals and field examinations relating thereto as contemplated by the Debt Financing Commitment and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing) and (vi) provide the financial statements and other information necessary for the satisfaction of the obligations and conditions set forth in the Debt Financing Commitment within the time periods required thereby in order to permit a Closing Date on or prior to the Termination Date; provided, however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries. The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or Company shall use its reasonable best efforts to obtain possession pay-off letters, in form and substance reasonably satisfactory to Parent, from holders of all indebtedness of the leasehold interest shall be deemed extended by Company or any of its Subsidiaries as set forth in Section 7.2(g) of the number Company Disclosure Letter and to ensure that each such pay-off letter will provide for the waiver of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease notice provisions relating thereto. The Company and its Subsidiaries shall not be materially modifiedpay or agree to pay any amounts in excess of all principal and accrued interest, amended or surrendered (except upon termination pursuant to this Lease) if any, outstanding thereon as of the Closing in respect of such indebtedness in connection with obtaining such pay-off letters and waivers without the prior written consent of each Leasehold Mortgagee;Parent (which shall not be unreasonably withheld or delayed). If this Agreement is terminated pursuant to Section 8.1 or 8.3(b) (but with respect to Section 8.3(b) only for a Willful or Deliberate Breach by Parent or Merger Sub) Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or its Subsidiaries in connection with such cooperation.
(mc) The Trust Deed shall provide that, prior Notwithstanding anything to the institution of any proceedings to foreclose contrary set forth in this Agreement or in the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust DeedDebt Financing Commitment, the holder or beneficiary thereof shall notify Landlord in writing Company and Parent agree that such proceedings or negotiations are to be commenced, and Landlord Parent shall have the right, but not in its sole discretion, to determine the obligationaggregate principal amount of funded debt to be incurred at Closing to finance the transactions contemplated hereby (the “Aggregate Closing Funded Debt”). If at any time prior to February 23, within sixty 2007, Parent determines, in its sole discretion, that the Aggregate Closing Funded Debt shall be an aggregate principal amount less than $600,000,000, Parent shall notify the Company in writing of such determination, which notice shall specify the Aggregate Closing Funded Debt Parent has determined will be incurred at Closing. The Company shall have seventy-two (6072) days hours after receiving receipt of such notice to purchase advise Parent in writing whether or not the Trust Deed and Company elects to waive irrevocably the indebtedness which it secures at a purchase price equal condition set forth in Section 7.3(c) hereof by reason of such determination by Parent. If the Company fails to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder respond to such notice or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements does not elect in connection with any Improvements, including but not limited writing to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any waive such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed condition prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy end of such Trust Deed and seventy-two (72) hour period, Parent shall have the Note secured thereby; and
(oright, in its sole discretion, to terminate this Agreement pursuant to Section 8.4(i) All insurance proceeds arising from damage at any time on or destruction of the Improvements shall be available for restoration thereof prior to the extent Tenant is obligated Termination Date. Parent may exercise its right under the terms of this Lease Section 6.12(c) to restore the Improvements following determine Aggregate Closing Funded Debt on one or more occasions so long as it complies with its notice requirements each time it exercises such damage or destructionright.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 3 contracts
Sources: Merger Agreement (McJunkin Red Man Corp), Merger Agreement (Goldman Sachs Group Inc), Merger Agreement (McJunkin Red Man Holding Corp)
Financing. Tenant may seek (a) Parent shall use its best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Improvements Financing on the terms and conditions described in the Commitment Letter, including using best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter, (iii) satisfy on a timely basis all conditions applicable to Parent in the Commitment Letter that are within its control and comply with its obligations thereunder, and (iv) consummate the Financing no later than the Acceptance Time. Parent shall have the right from time to time during the Term. For such purpose onlyto amend, Tenant shall have the rightreplace, with Landlord’s prior written approvalsupplement or otherwise modify, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part waive any of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyits rights under, the “Trust Deed”). Landlord’s written approval Commitment Letter and/or substitute other debt or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns equity financing for all or any portion of Tenant’s Interest the Financing from the same and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to secure a loan permitted under or waiver of any provision of the Commitment Letter that amends the Financing and/or substitution of all or any portion of the Financing shall not prevent or impede or delay the consummation of the Offer, the Merger and the other transactions contemplated by this Agreement and shall be subject to Section 14.26.23. If any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, then in each case, on the terms and conditions contemplated in the Commitment Letter and such portion is reasonably required to fund the cash portion of the Offer Price or the Merger Consideration and all fees, expenses and other amounts contemplated to be paid by Parent pursuant to this Agreement, Parent shall use its best efforts to arrange and obtain alternative financing from alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement upon conditions no less favorable to Parent and the Company than those in the Commitment Letter as promptly as practicable following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;occurrence of such event.
(b) The Landlord shall not be required to sign any Trust Deed In the event that the Commitment Letter is amended, replaced, supplemented or the Noteotherwise modified, including as a result of obtaining alternative financing in accordance with Section 6.17(a), or otherwise become obligated thereunder;
(c) No such lien, charge if Parent substitutes other debt or encumbrance shall constitute equity financing for all or a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession portion of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this LeaseFinancing, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof case to the extent Tenant is permitted pursuant to Section 6.17(a), each of Parent and the Company shall comply with its covenants set forth herein with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing to the same extent that Parent and the Company would have been obligated under to comply with respect to the terms of this Lease to restore the Improvements following such damage or destructionFinancing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 3 contracts
Sources: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Financing. Tenant 2.18.1 Notwithstanding anything to the contrary contained in this Agreement, Company will have the right at such time or times as Company desires and without Lessor’s consent, to hypothecate Company’s interest in all or part of this Agreement, the Premises and the Facilities with one or more Leasehold Mortgages. Such Leasehold Mortgages may seek contain such terms and conditions as are acceptable to obtain a loan to finance the Improvements Company and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall Company will have the right, with Landlord’s prior written approvalwithout the consent of Lessor, which shall not be unreasonably withheld, conditioned or delayed, at any time during the term hereof to assign all or part of Tenant’s interest under this Lease, as security execute and deliver to any Institutional Lender (or all of its Leasehold Mortgagees any documents which will operate as collateral security for any loan or loans made, even if such document or documents result in a “form or type of conveyance or assignment of the leasehold interest demised hereunder. It is hereby agreed that Company or any such Leasehold Mortgagee”Mortgagees will have the right to immediately record such document or document(s) which has advanced with an appropriate public official or officials. Company agrees that copies of all such funds to Tenant pursuant to a promissory note and a trust deed documents of conveyance or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall assignment as contained in this Section 2.18 will be provided to Tenant within twenty (20) Business Days the LDR forthwith. ▇▇▇▇▇▇ agrees to cooperate in executing any documents reasonably requested of Tenant’s Lessor by Company or the Leasehold Mortgagee in connection with any such Leasehold Mortgage; PROVIDED, HOWEVER, UNDER NO CIRCUMSTANCES SHALL LESSOR BE OBLIGATED TO SUBORDINATE ITS FEE INTEREST IN THE PREMISES TO ANY LEASEHOLD MORTGAGE, AND, NOTWITHSTANDING ANY TERM OR PROVISION OF ANY SUCH LEASEHOLD MORTGAGE OR THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY SUCH LEASEHOLD MORTGAGE CONSTITUTE AN INDEBTEDNESS OR OBLIGATION OF LESSOR NOR SHALL LESSOR BE LIABLE IN ANY WAY FOR THE PAYMENT OF ANY PORTION OF THE INDEBTEDNESS EVIDENCED BY SUCH LEASEHOLD MORTGAGE OR FOR THE PAYMENT OR PERFORMANCE OF ANY OTHER OBLIGATION THEREUNDER OR SECURED THEREBY.
2.18.2 Lessor will deliver to any such Leasehold Mortgagee written requestnotice of any default of Company under the terms of this Agreement and said notice will specify the nature of the default. Before terminating this Agreement, which Lessor will allow such Leasehold Mortgagee to cure or commence to cure any default of Company in accordance with the provisions of this Agreement. The time period to cure any default of Company will commence when said notice is delivered to Leasehold Mortgagee and Leasehold Mortgagee shall contain have the information regarding same lengths of time to cure the assignee’s financial strength, reputation and experience delineated specified default as are permitted Company in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved2.14. In the event Tenant assigns Company fails to timely cure a default after receipt of written notice and expiration of any applicable cure period, ▇▇▇▇▇▇ agrees to provide any Leasehold Mortgagee with a second written notice and provide such Leasehold Mortgagee with an additional thirty (30) day cure period. Lessor will not have the right to exercise any remedies under this Agreement so long as a Leasehold Mortgagee is diligently prosecuting to complete a cure of any default. If such default is of a nature which is incapable of being cured by Leasehold Mortgagee, Lessor agrees not to exercise its remedies arising from such default if (i) Leasehold Mortgagee notifies Lessor in writing within such thirty (30) day cure period that Leasehold Mortgagee intends to foreclose its mortgage and Leasehold Mortgagee commences and diligently pursues such foreclosure; and (ii) Leasehold Mortgagee makes all payments due by Company under this Agreement through the date of foreclosure.
2.18.3 Any default by the Company in the payment of money as required under the terms of this Agreement may be cured by the Leasehold Mortgagee in accordance with the terms of Sections 2.14 and 2.18.2 of this Agreement, and Lessor will accept any such payment or cure from such Leasehold Mortgagee during the term of the Leasehold Mortgage.
2.18.3.1 Should the Company default under the terms of this Agreement and should the default be such that it cannot be cured by the payment of money, Lessor will accept payments of rent from such Leasehold Mortgagee and this Agreement will not terminate, but will remain in full force and effect, pending Leasehold Mortgagee’s cure of such default within the time periods described herein or resort to foreclosure or sale proceedings under its deed of trust or other security instruments.
2.18.4 If any default has been cured by a Leasehold Mortgagee or Assignee, Lessor agrees that upon completion of any foreclosure proceedings or sale under the deed of trust or other security instrument securing the loan, or upon delivery of a deed in lieu of foreclosure, the Leasehold Mortgagee or purchaser at such sale or any portion heir, successor, or assign of Tenant’s Interest Leasehold Mortgagee (Assignee) subsequent to secure a loan permitted such sale will be recognized by Lessor as the lessee under the terms of this Agreement for all purposes for the remaining term hereof. The leasehold interest of the Leasehold Mortgagee or such Assignee will not be adversely affected or terminated by reason of any nonmonetary default occurring prior to the completion of such proceedings or sale, provided such default has been promptly remedied (to the extent it is capable of being remedied by Leasehold Mortgagee), or if such default requires possession to cure, provided such Leasehold Mortgagee, Assignee or purchaser promptly commences to cure upon taking possession of the Premises.
2.18.5 Such Leasehold Mortgagee will not become personally liable under the terms and obligations of this Agreement unless and until it assumes the obligations and is recognized by Lessor as lessee under this Section 14.2Agreement and will be liable only so long as such Leasehold Mortgagee or Assignee maintains ownership of the leasehold interest or estate and recourse to such Leasehold Mortgagee or Assignee shall be limited solely to Leasehold Mortgagee’s or Assignee’s interest in the Premises.
2.18.6 At any time during the term of this Lease, then within ten (10) days after a written request by the following shall applyCompany or any Leasehold Mortgagee, Lessor, through Lessor’s Designated Representative, will execute, acknowledge and deliver to the Company or such person or entity as the Company designates, a certificate stating:
(a) Landlord will enter into a Lender Recognition that this Agreement is the only Agreement between Lessor and Company concerning the Premises and is unmodified and in full force and effect in accordance with its terms (or if there have been modifications, that this Agreement is in force and effect as modified, and identifying the Leasehold Mortgageemodification agreements, or if this Agreement is not in full force and effect, that it is not);
(b) The Landlord shall not be required the commencement and expiration dates of this Agreement and the date to sign any Trust Deed or the Note, or otherwise become obligated thereunderwhich rental has been paid to Lessor under this Agreement;
(c) No such lienwhether or not, charge or encumbrance shall constitute a lien or encumbrance upon to the Landlord’s fee title knowledge of the Lessor, there is an existing default by Company in the Premises payment of Rent or their reversionary interest in the Improvementsany other sum of money under this Agreement, and whether or not there is any other existing default by either party under this Agreement with respect to which a notice of default has been served, and if there is such a default specifying its nature and extent;
(d) Any interest in whether or not, to the Premises which knowledge of Lessor, there are any set-offs, defenses or counter-claims against enforcement of the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on obligations to be performed by Lessor or before the date of expiration of Company under this Lease;Agreement; and,
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right such other reasonable information relating to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no this Agreement that a Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue assignee may request.
2.18.7 All notices of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall default required to be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available delivered to a Leasehold Mortgagee under this Agreement will be sent to initiate foreclosure proceedingsany Leasehold Mortgagee by overnight courier service or certified mail, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest return receipt requested. No such notice shall be deemed extended by the number of days of delay occasioned by judicial restriction valid or application or operation of law effective as against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;until and unless actually received by the Leasehold Mortgagee as evidenced by the courier service’s delivery records or the return receipt.
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to 2.18.8 In the event this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, Agreement is terminated for any reason prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu end of the foreclosure of term (it being the Trust Deedintent that the Agreement will remain in full force and effect if Leasehold Mortgagee performs), Lessor shall enter into a new Agreement with Leasehold Mortgagee holding a first priority interest covering the holder or beneficiary thereof shall notify Landlord in writing Premises, provided that the Leasehold Mortgagee (i) requests such proceedings or negotiations are new Agreement by written notice to be commenced, and Landlord shall have the right, but not the obligation, Lessor within sixty (60) days after receiving termination, and (ii) cures all prior defaults of Company that are capable of being cured by Leasehold Mortgagee. The new Agreement shall be for the remainder of the term, effective at the date of such notice termination, at the same rent and on the same covenants, agreements, conditions, provisions, restrictions and limitations contained in this Agreement. The new Agreement shall have the same title priority as this Agreement and shall be subject only to purchase the Trust Deed exceptions to title having priority over this Agreement or such additional exceptions to which such Leasehold Mortgagee has consented in writing. In the event the Lessor and such Leasehold Mortgagee enter into any such new Agreement, title to all the Facilities located upon the Premises as of the date of such new Agreement shall automatically vest in such Leasehold Mortgagee. If requested by such Leasehold Mortgagee, ▇▇▇▇▇▇ agrees to execute and deliver to Leasehold Mortgagee within 10 days after request therefore, a quitclaim deed in recordable form conveying title to such Facilities to such Leasehold Mortgagee. ▇▇▇▇▇▇ also agrees to assign to such Leasehold Mortgagee all Subleases with Tenants who’s Subleases attorn to Lessor upon the termination of this Agreement.
2.18.9 Lessor shall cooperate in amending this Agreement from time to time to add any provision which may reasonably be requested by any Leasehold Mortgagee or proposed lender for the purpose of implementing the mortgagee protection provisions contained in this Agreement and allowing such Leasehold Mortgagee reasonable means to protect or preserve the lien of its loan and the indebtedness which it secures at a purchase price equal value of its security. Lessor agrees to execute and deliver (and to acknowledge if necessary for recording purposes) any agreement necessary to effect any such amendment; provided, however, that any such amendment shall not in any way affect or change the full amount then owing term of this Agreement or the Rent or other amounts payable to Lessor under said Trust Deedthis Agreement, including accrued interestsubordinate the fee interest of Lessor in the real property underlying the Premises, reasonable attorneys’ fee for nor otherwise in any material respect adversely affect any rights of Lessor under this Agreement.
2.18.10 The bankruptcy or insolvency of Company will not operate or permit the holder Lessor to terminate this Agreement as long as all Rent or beneficiary, other monetary payments required to be paid by Company continue to be paid and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements other required obligations are performed in connection accordance with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease Agreement.
2.18.11 To the extent any of the terms of this Agreement are inconsistent with the terms of this Section regarding mortgagee protection provisions, the mortgagee protection provisions will control.
2.18.12 Every Leasehold Mortgage shall contain a provision that copies of all notices of default by Company thereunder must be sent to Lessor. In the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days event of any default by Tenant Company under any Leasehold Mortgage, the Lessor reserves the right to make any payments due to the Leasehold Mortgagee before the Leasehold Mortgagee resorts to any foreclosure or sale proceedings under its deed of trust or other security instrument.
2.18.12.1 Following any foreclosure or deed in lieu of foreclosure the leasehold estate created by this Agreement and the Facilities may be transferred or assigned as provided in Section 2.1.2.
2.18.13 Any mortgage placed by the Lessor on any such loan and the fee title to the Premises shall be given the opportunity subordinate to correct the default this Agreement (and assume the loan(s) any replacement to this Agreement), any separate lease entered into in accordance with Section 4.8 and all Subleases.
2.18.14 Prior to any termination of this Agreement by Lessor, any Leasehold Mortgagee shall be allowed sufficient time to complete any foreclosure action, including time for delays due to official restraint (including by law, process or injunction issued by a court), so long as such Leasehold Mortgagee is making payments required by this Agreement which can be reasonably determined prior to initiation acquiring the Company’s interest under this Agreement. Leasehold Mortgagee shall have the right to terminate foreclosure proceedings at any time if Company has cured all defaults under any loan from Leasehold Mortgagee. However, no such termination of foreclosure actions other than the filing of a notice of default pursuant proceedings shall prevent Lessor from pursuing, or continuing to the California Civil Code Section 2924;pursue, its rights and remedies under this Agreement against Company for any uncured defaults under this Agreement.
(n) Tenant 2.18.15 So long as any Leasehold Mortgage is in effect, there shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction be no merger of the Improvements leasehold estate created by this Agreement into the fee simple estate in the Premises without the prior written consent of the Leasehold Mortgagee.
2.18.16 Any Leasehold Mortgagee shall have the right to participate in any settlement or adjustment of losses under insurance policies maintained by Company under this Agreement. Such Leasehold Mortgagee shall be available for restoration thereof to the extent Tenant is obligated named as a loss payee or additional insured, as applicable, in accordance with any loan documents executed by Company, under the terms insurance policies required under this Agreement. Company shall use commercially reasonable efforts to obtain provisions in Leasehold Mortgages providing that any proceeds of insurance shall first be used for the purposes provided for in this Lease Agreement before any portion thereof is applied to restore the Improvements following repay any indebtedness under such damage or destructionLeasehold Mortgage.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 3 contracts
Sources: Lease Agreement, Lease Agreement, Lease Agreement
Financing. Tenant may seek (a) Subject to obtain a loan the terms and conditions of this Agreement, Parent shall (and shall cause its Affiliates to) use its commercially reasonable efforts to finance the Improvements take, or cause to be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Improvements Financing on the terms and subject only to the conditions (including pursuant to any “flex” provisions in any fee letter relating to the Debt Financing) set forth in the Financing Letters, including using commercially reasonable efforts to (i) comply with its obligations under (A) the Equity Funding Letters and (B) the Debt Commitment Letters and any definitive agreements related thereto, (ii) maintain in effect the Financing Letters (subject to Parent’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in accordance herewith) until the earliest of the consummation of the Transactions, the termination of this Agreement or the time at which any Alternative Debt Financing is available, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing on a timely basis on terms and conditions (including the flex provisions) contained in the Debt Commitment Letters or otherwise not materially less favorable with respect to conditionality to Parent in the aggregate than those contained in the Debt Commitment Letters, (iv) satisfy on a timely basis all conditions contained in the Financing Letters that are applicable to Parent and its Affiliates and the definitive agreements related thereto, including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing or Equity Financing, as applicable, (v) if all conditions to the Debt Financing and the Equity Financing have been satisfied in accordance with the Debt Commitment Letters and Equity Funding Letters, respectively, cause the Persons committing to fund the applicable Financing to fund such Financing at the Closing and (vi) enforce its rights under the Financing Letters and the definitive agreements relating to the Financing. To the extent reasonably requested by the Company in writing from time to time during time, Parent shall keep the Term. For such purpose only, Tenant shall have Company reasonably informed on a reasonably current basis and in reasonable detail of the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, status of its efforts to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note arrange the Debt Financing and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond provide to the request within twenty Company copies (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%material drafts) of the fair market value of material Debt Financing documents. Parent shall give the Improvements at the time the loan is entered into.Company prompt notice upon
Appears in 3 contracts
Sources: Merger Agreement (Ares Management LLC), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with The Purchaser shall use its best efforts to obtain the Leasehold Mortgagee;
(b) The Landlord Financing on the terms and conditions described in or contemplated by the Financing Commitments and shall not be required agree to sign any Trust Deed amendment or the Notemodification to, or otherwise become obligated thereunder;
(c) No such lien, charge any waiver of any provision or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leaseremedy under, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) Financing Commitments without the prior written consent of each Leasehold Mortgagee;the Seller if such amendments, modifications or waivers would or would reasonably be expected to (i) reduce the aggregate amount of the Financing below the amount required to consummate the Contemplated Transactions or amend or modify any conditions in a manner adverse to the Seller, (ii) impose new or additional conditions to the receipt of the Financing, (iii) prevent or materially delay the Closing Date, or (iv) adversely impact in any material respect the ability of Purchaser to enforce its rights against the other parties to any of the Financing Commitments or (v) adversely impact the Contemplated Transactions in any manner.
(mb) The Trust Deed Without limiting the generality of Section 5.8(a), the Purchaser shall provide thatuse best efforts to (i) maintain in effect each of the Financing Commitments, (ii) satisfy all conditions and covenants applicable to the Purchaser in the Financing Commitments on or prior to the institution Closing and otherwise comply with its obligations thereunder, (iii) enforce its rights under the Financing Commitments and (iv) in the event that all conditions in the Financing Commitments, the Subscription Receipt Agreement (as defined in the Standby Purchase Agreement) and the Subscription Receipt Indenture (as defined in the Debt Subscription Agreement) have been satisfied, cause the persons providing the Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated by this Agreement.
(c) The Purchaser shall keep the Seller promptly informed of the status of its efforts to consummate the Financing and shall give Seller prompt written notice: (i) of any proceedings material breach or material default (or any event or circumstance that, with or without notice, lapse or time or both, would reasonably be expected to foreclose give rise to any material breach or material default) by any party to the Trust Deed Financing Commitments or definitive document related to the Financing of negotiations to accept an assignment in lieu which Purchaser becomes aware; (ii) of the foreclosure receipt of any written notice or other written communication from any party to the Financing Commitments with respect to any breach, default, termination or repudiation by any party to the Financing Commitments or any definitive document related to the Financing; and (iii) if the Purchaser becomes aware that it will not be able to obtain all or any portion of the Trust DeedFinancing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing; provided that Purchaser need not provide any information that is privileged.
(d) In the event any portion of the Financing becomes unavailable on the terms and conditions described in or contemplated by the Financing Commitments for any reason whatsoever, as promptly as reasonably practicable following the occurrence of such event, the holder or beneficiary thereof Purchaser shall notify Landlord use best efforts to obtain alternative financing from alternative sources on terms and conditions substantially not less favourable, taken as a whole, to Purchaser (in writing the reasonable judgment of Purchaser) than those in the unavailable Financing Commitments and that such proceedings or negotiations are is sufficient, when taken together with the Purchaser’s cash on hand and each of the Financing Commitments that remains available at the time to be commenced, and Landlord shall have pay the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed Purchase Price and the indebtedness which it secures at a purchase price equal to fees and expenses payable by the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements Purchaser in connection with the Contemplated Transactions (the “Alternative Financing”). The Purchaser shall keep Seller promptly informed on a reasonably current basis of the status of its efforts to arrange any ImprovementsAlternative Financing. For the purposes of this Agreement, “Financing Commitments” shall be deemed to include any commitment letter (or similar agreement) with respect to any Alternative Financing arranged in compliance herewith.
(e) Prior to the Closing, the Seller shall use commercially reasonable efforts and shall cause the ELN Companies to use commercially reasonable efforts, and shall use its commercially reasonable efforts to cause its respective representatives to, provide to the Purchaser, at the Purchaser’s sole expense in respect of the Seller’s out-of-pocket costs, all reasonable cooperation requested by the Purchaser that is required in connection with the Financing and any Alternative Financing, including but not limited (i) furnishing the Purchaser and its financing sources with (1) copies of the Financial Statements, together with, to construction loansthe extent applicable, long term loans the report of the Seller’s auditors with respect thereto, and refinancing permitted (2) all information relating to the ELN Companies and the Business, including the financial statements required by Applicable Laws for inclusion in any prospectus filed by PNCC with securities regulatory authorities in Canada in connection with the Financing, it being understood and agreed by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee Parties that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of if any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions financial statements, other than the filing of a notice of default pursuant to financial statements prepared by the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed Seller prior to the execution and/or recording date hereof, are required to be prepared pursuant to Applicable Laws or otherwise in connection with the Financing, all out-of-pocket fees, costs and expenses relating to the preparation and delivery of same such financial statements shall be borne exclusively by Tenantthe Purchaser (information required to be delivered pursuant to this clause (i) being referred to as the “Required Information”); (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers, agents or underwriters for, and shall accompany such notice prospective lenders and investors of or in, the Financing and senior management and representatives, with a true copy appropriate seniority and expertise, of such Trust Deed the Business, including the chief executive officer, chief financial officer and other senior executive officers of each of the ELN Companies), due diligence sessions, (iii) providing monthly income statements down to the EBITDA level (internal flash statement of income) for the Business and monthly accounts receivable balance of the Business, (iv) assisting with the preparation of customary materials for bank information memoranda, offering documents, prospectuses, private placement memoranda and similar documents required in connection with the Financing (including the delivery of any consents of accountants for use of their reports in any materials relating to the Financing and the Note secured thereby; and
delivery of one or more customary representation letters), (ov) All insurance proceeds arising from damage or destruction using commercially reasonable effort to facilitate the pledging of collateral in connection with the Financing, including executing and delivering any documents as may be reasonably requested by the Purchaser, (vi) providing access and information reasonably requested by the Purchaser to allow the Purchaser to undertake inventory appraisals, field audits, environmental assessments and obtain surveys and title insurance, (vii) providing to the sources of the Improvements Financing all documentation and other information required by regulatory authorities with respect to the Company under applicable “know your customer” and anti-money laundering rules and regulations, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada)), (viii) causing the taking of corporate actions (subject to the occurrence of the Closing) by the ELN Companies reasonably necessary to permit the completion of the Financing, (ix) facilitating the execution and delivery at the Closing (subject to the occurrence of the Closing) of definitive documents related to the Financing on the terms contemplated by the Financing Commitments, and (x) using commercially reasonable efforts to cause accountants and legal counsel to provide their reasonable cooperation and assistance, including participating in a reasonable number of due diligence sessions and drafting sessions; provided, however, that nothing herein shall be available for restoration thereof require such cooperation to the extent Tenant is obligated under it would interfere unreasonably with the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) operation of the fair market value Business; provided, further, that the Seller and the ELN Companies shall not be required to take any action described in this Section 5.8 that would become legally binding on any of them prior to the Closing. Neither the Seller nor any of the Improvements at ELN Companies shall be required to take any action that would subject any of them to any liability, to bear any third-party cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs or any such costs, expenses, fees or payments to be reimbursed by the time Purchaser) or incur any other liability or provide or agree to provide any indemnity in connection with the loan Financing or any of the foregoing, which is entered intoeffective prior to the Closing. The Seller will ensure that none of the Required Information contains any misrepresentations (as defined in the Securities Act (Ontario)) regarding the Seller, the ELN Companies or the Business. The Purchaser shall indemnify and hold harmless the Seller and the ELN Companies and their representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement or completion of the Financing (including any action taken in accordance with this Section 5.8) and any information utilized in connection therewith (other than the Required Information) except in the event such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments or penalties arose out of or result from the wilful misconduct, intentional misrepresentation or gross negligence of the Seller, its Affiliates or any of their respective officers, employees or representatives. The Purchaser shall, promptly upon request by the Seller, reimburse the Seller and the ELN Companies for all documented and reasonable out-of-pocket costs incurred by the Seller and the ELN Companies in connection with this Section 5.8(e). The Seller hereby consents to the reasonable use of the ELN Companies’ logos in connection with the Financing, provided that such logos are used solely in a manner that is not intended or reasonably likely to harm or disparage the ELN Companies in any respect.
Appears in 3 contracts
Sources: Purchase Agreement (Quebecor Media Inc), Purchase Agreement (Postmedia Network Canada Corp.), Purchase Agreement (Postmedia Network Canada Corp.)
Financing. Tenant may seek Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Equity Financing contemplated by the Equity Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Equity Commitment Letter, including (a) maintaining in full force and effect the Equity Commitment Letter in accordance with the terms thereof and complying with its obligations thereunder and (b) satisfying on a loan timely basis all conditions to finance the Improvements and to refinance funding of the Improvements from time to time during Equity Financing set forth in the Term. For such purpose onlyEquity Commitment Letter, Tenant shall have if any, that are within Parent’s or Merger Sub’s control, in each case, no later than at the rightClosing (excluding conditions that, with Landlord’s prior written approvalby their terms, which shall cannot be unreasonably withheldsatisfied until the Closing, conditioned or delayedbut subject to the satisfaction or, to assign all or part the extent permitted by applicable Law, waiver of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, conditions at the “Trust Deed”Closing). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns that all conditions contained in the Equity Commitment Letter have been satisfied, Parent and Merger Sub shall use commercially reasonable efforts to cause Parent Sponsor to comply with its obligations thereunder, including to fund the Equity Financing. Parent and Merger Sub shall keep the Company informed in reasonable detail of the status of its efforts to arrange the Equity Financing and any other financing upon the written request of the Company and shall give the Company prompt written notice of (i) any breach by any party to the Equity Commitment Letter of any material provision which Parent or Merger Sub has become aware or (ii) Parent’s or Merger Sub’s good faith belief, for any reason, that it may no longer be able to obtain all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with Equity Financing contemplated by the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations Equity Commitment Letter on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants terms and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionconditions described therein.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 3 contracts
Sources: Merger Agreement (Vapotherm Inc), Merger Agreement (Vapotherm Inc), Merger Agreement (Army Joseph)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement Parent covenants and agrees with the Leasehold Mortgagee;Company, on behalf of itself and its Subsidiaries, that it shall take all action necessary to ensure that as of the Closing Date, Parent and Merger Sub will have funds, in the aggregate, sufficient for (i) the payment of the aggregate Cash Consideration and any other amounts required to be paid pursuant to Article II, the aggregate amount of cash to be deposited pursuant to Section 1.7(b) in respect of the Reserved Company Common Stock, and the aggregate amount of cash to be paid pursuant to the terms of Section 1.9 in respect of the Company RSU Awards, (ii) the funding of any required refinancings or repayments of any existing indebtedness of the Company or Parent in connection with the Merger or the Financing, and (iii) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Entity in connection with the Merger and the Financing.
(b) The Landlord Company shall, shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to, provide all cooperation reasonably requested by Parent with reasonable notice in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts to (i) provide information relating to the Company and its Subsidiaries to the Financing Sources that is reasonably available to the Company and is customary for completion of the Financing by the Financing Sources (including audited consolidated financial statements of the Company covering the three (3) fiscal years immediately preceding the Closing for which audited consolidated financial statements are currently available, unaudited financial statements (excluding footnotes) for any interim period or periods of the Company ended after the date of the most recent audited financial statements and at least 40 days prior to the Closing Date and information regarding the business, operations and financial projections of the Company), (ii) participate and cause senior management to participate in a reasonable number of meetings with Financing Sources and other presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, in each case, relating to the completion of the Financing by the Financing Sources, (iii) assist in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents for the Financing, and (B) materials for rating agency presentations, (iv) cooperate with the marketing efforts for any component of the Financing (including consenting to the use of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries), (v) execute and deliver (or use reasonable best efforts to obtain from its advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), credit agreements and other loan documents, currency or interest hedging agreements, customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), or other documents and instruments ancillary to the Financing as may be reasonably requested by Parent as customary in connection with the Financing, including any amendments of any of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements; provided that no obligation of any of the Company or its Subsidiaries shall be effective under credit agreements, loan documents or currency or interest hedging arrangements or amendments to such existing arrangements of the Company and its Subsidiaries until the Effective Time, (vi) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (vii) use its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Merger Sub at the Closing, provided that the Company shall not be required prohibited from using cash and marketable securities in the ordinary course or from taking any action not prohibited by Section 5.1, (viii) provide customary authorization letters to sign any Trust Deed the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Affiliates, provided that the NoteCompany shall have received such documents in reasonable time to review and provide such representations, or otherwise become obligated thereunder;and (ix) cooperate reasonably with Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company and its Subsidiaries.
(c) No such lienNotwithstanding the foregoing, charge or encumbrance until the Effective Time occurs, neither the Company, any of its Subsidiaries, nor their respective Representatives, shall constitute a lien or encumbrance upon the Landlord’s fee title (i) be required to take any action in the Premises capacity of a director of the Company or any of its Subsidiaries with respect to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) if such Representative believes such action would be inconsistent with their fiduciary duties, (ii) be required to pay any commitment or other similar fee, (iii) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (iv) be required to incur any other liability in connection with the Financing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement). Parent (i) shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses actually incurred by the Company, any of its Subsidiaries or their reversionary interest respective Representatives in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.11, (ii) acknowledges and agrees that, except for obligations of the Company’s Subsidiaries from and after the Effective Time, the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), and (iii) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them prior to the Effective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries and information provided by the Company, its Subsidiaries or their Representatives), except in the Improvements;event that such losses, damages, claims, costs or expenses arise out of or result from the willful misconduct or gross negligence of the Company, any of its Subsidiaries or their respective Representatives.
(d) Any interest In the event that the Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing, or if Parent substitutes other debt or equity financing for all or a portion of the Financing, the Company shall comply with its covenants in Section 6.11(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other debt or equity financing to the same extent that the Company would have been obligated to comply with respect to the Financing, provided, that the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing shall not (A) add new (or modify, in a manner adverse to Parent, any existing) conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Premises which Commitment Letter or the Trust Deed establishes in a trusteedefinitive agreements with respect thereto on terms and conditions contemplated by the Commitment Letter (any such agreements the “Definitive Financing Agreements”), (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Definitive Financing Agreements, or (C) prevent, impede or delay the consummation of the Merger and any lien which it createsthe other transactions contemplated by this Agreement. This Section 6.11 shall be deemed to apply to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and/or such other debt or equity financing and references to the Financing shall expire on or before the date of expiration of this Lease;be deemed to refer instead to such alternative financing.
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber All non-public or otherwise hypothecate in any way confidential information regarding the Landlord’s fee Company obtained by Parent or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination its Representatives pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord Section 6.11 shall be notified by kept confidential in accordance with the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionConfidentiality Agreement.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 3 contracts
Sources: Merger Agreement (Rock-Tenn CO), Merger Agreement (SMURFIT-STONE CONTAINER Corp), Merger Agreement (Rock-Tenn CO)
Financing. Tenant may seek (a) Subject to obtain the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to (i) cause the Lender to fund the Debt Financing on the terms and conditions described in the Facility Agreement at or prior to the Effective Time, (ii) maintain in effect the Financing Commitments until the Transactions are consummated, (iii) satisfy on a loan timely basis all conditions precedent to finance funding of the Improvements Debt Financing applicable to Parent and to refinance Merger Sub in the Improvements from time to time during Facility Agreement that are within its control, (iv) enforce its rights under the Term. For such purpose onlyRollover Agreement, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyAdditional Rollover Agreements, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain Equity Commitment Letter and the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Facility Agreement to the request within twenty extent necessary to fund the Merger Consideration, and (20v) Business Dayscause the Sponsor to fund the Equity Financing at or prior to the Effective Time; provided, that (i) Parent and Merger Sub may amend or modify the request shall be deemed approved. In the event Tenant assigns Financing Commitments and/or elect to replace all or any portion thereof; or (ii) in the event that any portion of Tenant’s Interest the Debt Financing becomes unavailable other than due to secure the material breach of representations and warranties or covenants of the Company or a loan permitted under this Section 14.2failure of a condition to be satisfied by the Company after providing notice to the Company and a reasonable opportunity to cure, then Parent shall notify the following shall apply:
Company and use its reasonable best efforts to arrange alternative financing (athe “Alternative Financing”) Landlord will enter into a Lender Recognition Agreement from alternative sources in an amount sufficient, when added to the portion of the Financing that is available, for Merger Sub and the Surviving Corporation to pay (i) the Exchange Fund, and (ii) any other amounts required to be paid in connection with the Leasehold Mortgagee;consummation of the Transactions upon the terms and conditions contemplated hereby. Parent shall deliver to the Company as soon as practicable after such execution, a true and complete copy of the definitive agreement pursuant to which the Alternative Financing is committed to be provided (the “Alternative Facility Agreement”) as soon as practicable after execution thereof. To the extent applicable and subject to the terms and conditions of this Agreement, Parent and Merger Sub shall use their respective reasonable best efforts to obtain the Alternative Financing on the terms and conditions described in the Alternative Facility Agreement (including any “market flex” provision). Each of Parent and Merger Sub shall use its reasonable best efforts to (i) maintain in effect the Alternative Facility Agreement, (ii) satisfy on a timely basis all conditions in the Alternative Financing Agreement within its control, and (iii) enforce its rights under the Alternative Facility Agreement to the extent necessary to fund the Merger Consideration. Parent shall keep the Company reasonably informed on a reasonably current basis of the status of Parent’s efforts to arrange any Alternative Financing.
(b) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall not permit any amendment or modification to be made to, or any waiver of, any provision under, the Financing Commitments, or, if applicable, the Alternative Facility Agreement if such amendment or modification or waiver (i) reduces or would reduce the aggregate amount of the Financing and the Alternative Financing or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing or the Alternative Financing, or otherwise expands, amends or modifies any other provisions of the Financing Commitments or, if applicable, the Alternative Facility Agreement in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding of the Financing or the Alternative Financing at the Effective Time or (y) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Financing Commitments and, if applicable, the Alternative Facility Agreement, in each of clauses (x) and (y) in any material respect. Parent shall not consent to the termination or release of the obligations of the Lender, the Sponsor or any of the Rollover Shareholders under the Financing Commitments (or the Alternative Facility Agreement, if applicable), except for assignments and replacements of an individual lender in connection with the syndication of the Debt Financing or Alterative Financing that are permitted thereunder. Parent shall give the Company notice promptly (i) upon becoming aware of any breach of any material provisions of, or termination by any party to, the Financing Commitments and, if applicable, the Alternative Facility Agreement.
(c) The Landlord Company shall, and shall cause each of the Company’s Subsidiaries and each of their respective Representatives to, provide to Parent and Merger Sub all reasonable cooperation requested by Parent or Merger Sub or their respective Representatives in connection with the Debt Financing and/or the Alternative Financing and the Transactions, including, without limitation, (i) participating in meetings, presentations, road shows, due diligence sessions, drafting sessions, sessions with rating agencies and other meetings, including making the Company’s executive officers reasonably available to assist directly with the Lender or the Sponsor, (ii) assisting with the preparation of such materials (which shall include, but shall not be limited to bank information memoranda and information for rating agency presentations) as the Parent or its Representatives may reasonably request in connection with the Debt Financing and/or Alternative Financing, including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and/or the Alternative Financing and delivery of one or more customary representation letters, (iii) executing and delivering any pledge or security documents, currency or interest hedging arrangements or other definitive financing documents conditioned upon Closing or other certificates, legal opinions or documents as may be reasonably requested by Parent or Merger Sub (including a certificate of the chief financial officer of the Company or any borrowing Subsidiary of the Company with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing and/or the Alternative Financing) or otherwise facilitating the pledging of collateral (including delivery of pay-off letters and other cooperation in connection with the payoff of existing Indebtedness and the release of all related Encumbrances), (iv) furnishing Merger Sub and its Debt Financing and/or Alternative Financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and its Debt Financing and/or Alternative Financing sources, including, without limitation, all financial statements and projections and other pertinent information required under the Facility Agreement or the Alternative Facility Agreement and all financial statements and financial and non-financial information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and of the type and form customary for the placement, arrangement and/or syndication of loans or distribution of debt contemplated by the Debt Financing and/or the Alternative Financing, (v) cooperating with advisors, consultants and accountants of Parent or its Debt Financing and/or Alternative Financing sources with respect to the conduct of any examination, appraisal or review of the financial condition or any of the assets or liabilities of the Company or any of its Subsidiaries, including for the purpose of establishing collateral eligibility and values, (vi) using reasonable best efforts to obtain accountants’ comfort letters, consents, legal opinions, surveys, title insurance and other documentation and items relating to the Debt Financing and/or Alternative Financing as reasonably requested by Parent or Merger Sub and to arrange discussions among Parent and its Debt Financing sources and/or Alternative Financing Sources with other parties to the Material Contracts, Real Property Lease and Encumbrances, (vii) providing monthly financial statements (excluding footnotes) to the extent the Company customarily prepares such financial statements within the time frame such statements are prepared, (viii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing and/or the Alternative Financing to evaluate the Company and the Company’s Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, (vii) entering into one or more credit or other agreements conditioned upon Closing and on terms satisfactory to Parent and Merger Sub in connection with the Debt Financing and/or the Alternative Financing immediately prior to the Effective Time, (viii) at the Company’s option, taking or appointing a representative of Parent to take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent or Merger Sub to permit the consummation of the Financing and the direct borrowing or incurrence of all of the proceeds of the Financing, including any high yield debt financing, by the Surviving Corporation or its Subsidiaries following the Effective Time, (xi) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or the Alternative Financing, including without limitations the execution and delivery of any other certificates, instruments or documents, and to permit the proceeds thereof, together with cash at the Company and its Subsidiaries, to be made available on the Closing Date to consummate the Transactions, and (xii) furnishing Parent, Merger Sub, their respective Representatives and sources of Debt Financing and/or Alternative Financing as promptly as practicable with all documentation and other information reasonably required by Governmental Authorities with respect to the Debt Financing and/or the Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations; provided, that (x) any such requested cooperation does not materially and unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or (y) the Company shall not be required to sign pay any Trust Deed commitment or other similar fee incur any other liability in connection with the NoteFinancing prior to the Effective Time. Other than as expressly contemplated by this Agreement, Parent and Merger Sub acknowledge and agree that the Company and its Affiliates and its and their respective Representatives shall not, prior to the Effective Time, incur any liability to any financing provider or otherwise become obligated thereunder;
(c) No such lien, charge other third party under any financing that Parent or encumbrance shall constitute a lien or encumbrance upon Merger Sub may raise in connection with the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;Transactions.
(d) Any interest No later than five Business Days prior to the Closing Date and at all times until the Effective Time, the Company shall cause (i) one or more of its wholly-owned PRC Subsidiaries established or incorporated in the Premises which PRC (“PRC Subsidiaries”) to transfer and deposit cash into one or more specified accounts (each, an “Onshore Bank Designated Account”) held with the Trust Deed establishes Onshore Account Branch referred to in a trusteethe Facility Agreement (or such other bank or financial institution approved by the Lender as notified by Parent) and standing to the credit of such PRC Subsidiaries and (ii) one or more of its wholly-owned Subsidiaries that are not established or incorporated in the PRC (“Offshore Subsidiaries”) to transfer and deposit cash into one or more specified accounts (each, an “Offshore Bank Designated Account”) held with the Offshore Account Bank referred to in the Facility Agreement and standing to the credit of such Offshore Subsidiaries, and any lien which it createsshall do or cause to be done all such other things necessary to ensure, shall expire on in each of the foregoing cases, such that the aggregate balance standing to the credit of the Onshore Bank Designated Accounts and the Offshore Bank Designated Accounts is not less than RMB100,000,000 (or before its equivalent, as determined using the date of expiration of this Lease;
conversion rate described in paragraph (e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
of Clause 1.2 (f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%Construction) of the fair market value Facility Agreement) until the Effective Time (such amount balance standing to the credit of the Improvements at Onshore Bank Designated Accounts and the time Offshore Bank Designated Accounts meeting the loan is entered intorequirements of this provision, the “Onshore Required Balance”).
Appears in 3 contracts
Sources: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)
Financing. Tenant may seek (a) Prior to the Charter Closing, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of the Financing on the terms and conditions described in the Financing Commitment (or any other Financing in lieu thereof) (subject to any amendments, modifications, waivers or replacements not prohibited by this Section 6.19(a)), including using reasonable best efforts to (i) maintain in effect the Financing Commitment, (ii) satisfy on a timely basis (or obtain a loan waiver of) all conditions to finance funding the Improvements Committed Financing, (iii) negotiate and enter into definitive agreements with respect thereto on terms and conditions described in the Financing Commitment (subject to refinance any amendments, modifications, waivers or replacements not prohibited by this Section 6.19(a)) on or prior to the Improvements Charter Closing Date, (iv) enforce its rights under the Financing Commitment and (v) in the event that all conditions in the Financing Commitment (or any other Financing in lieu thereof) have been satisfied, cause the lenders and other Persons providing the Committed Financing (or any other Financing in lieu thereof) to fund on the Charter Closing Date the Committed Financing (or any other Financing in lieu thereof) required to consummate the Transactions. To the extent requested by the Company from time to time during time, Parent shall keep the Term. For such purpose only, Tenant shall have Company informed on a reasonably current basis of the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned status of its efforts to obtain the Financing (or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”Alternative Financing) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond provide to the request within twenty Company copies of all material documents related to the Financing (20) Business Days, the request shall be deemed approvedor Alternative Financing). In the event Tenant assigns all or any portion of Tenant’s Interest the Committed Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Financing Commitment (and subject to secure a loan permitted under any amendments, modifications or replacements not prohibited by this Section 14.26.19(a)) prior to the Charter Closing Date for any reason (A) Parent shall promptly notify the Company in writing and (B) Parent shall use reasonable best efforts to obtain, then as promptly as practicable following the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue occurrence of such claimevent, acquire alternative financing (the “Alternative Financing”) in an amount sufficient to consummate the Transactions (after giving effect to any greater rights than Tenant then had under this Lease;
(h) The Trust Deed committed financing); provided, that such Alternative Financing would not reasonably be expected to prevent, impede or delay the consummation of the Transactions; provided, further that Parent shall be subject have no obligation to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
accept (i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee fees, interest or other economic terms (taken as though the same had been performed by Tenant;
(ja whole) The time available that are less favorable in any respect to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other Parent than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.fees,
Appears in 3 contracts
Sources: Merger Agreement (Brookfield Property Partners L.P.), Merger Agreement (Brookfield Asset Management Inc.), Merger Agreement (GGP Inc.)
Financing. Tenant may seek (a) Subject to the terms and conditions of this Agreement, in the period between the date hereof and the Closing Date, Parent and Merger Sub shall use their respective reasonable best efforts to obtain the Financing on substantially the terms and conditions described in the Commitment Letters, and use reasonable best efforts to: (i) maintain in effect the Commitment Letters, (ii) negotiate definitive agreements with respect to the Debt Financing in accordance with the terms and conditions contained in the Debt Commitment Letter (or on terms no less favorable to Parent or Merger Sub than the terms and conditions in the Debt Commitment Letter) so that such agreements are effective no later than the Closing, (iii) satisfy prior to the Closing all conditions precedent applicable to Parent and Merger Sub in the Commitment Letters that are within their control and that have not been waived by the Financing Sources, (iv) consummate the Financing in accordance with the terms described in the Commitment Letters (or otherwise acceptable to Parent) at or prior to Closing, and (v) enforce the rights of Parent and Merger Sub under the Commitment Letters and cause the Financing Sources to fund the Financing at or prior to Closing in accordance with the terms of the Commitment Letters, including by commencing a loan litigation proceeding against any breaching Debt Financing Source in which Parent and Merger Sub will use their reasonable best efforts to finance compel such breaching Debt Financing Source to provide its portion of such Debt Financing as required. Any and all fees and expenses in connection with the Improvements Commitment Letters and/or the Financing shall be paid by Parent or, if the Closing occurs, the Surviving Corporation.
(b) Without limiting the generality of Section 5.07(a), Parent and Merger Sub shall give the Company prompt written notice of (i) Parent or Merger Sub becoming aware of any material breach by any party to refinance the Improvements Commitment Letters, (ii) the receipt of any written notice or other written communication from time any Financing Source with respect to time during any termination or repudiation by any party to the Term. For such purpose onlyCommitment Letters, Tenant shall have (iii) Parent or Merger Sub becoming aware of any material dispute or disagreement between or among any parties to any Commitment Letters that would reasonably result in a material breach under the rightCommitment Letters, with Landlord’s prior written approval, which shall (iv) if for any reason Parent or Merger Sub believes in good faith that it will not be unreasonably withheld, conditioned or delayed, able to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns obtain all or any portion of Tenant’s Interest the Financing on substantially the terms and conditions contemplated by the Commitment Letters and (v) any amendment, modification or replacement of the Commitment Letters with copies thereof. As soon as reasonably practicable, but in any event within three (3) days of the date the Company delivers to secure Parent and Merger Sub a loan permitted under this Section 14.2written request, then Parent and Merger Sub shall provide any information reasonably requested by the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with Company relating to the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or circumstances in the Note, or otherwise become obligated thereunder;foregoing sentence.
(c) No such lienPrior to the Closing, charge or encumbrance Parent and Merger Sub shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedingsnot agree to, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction permit, any amendment or application modification of, or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leasewaiver under, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) Commitment Letters without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed) if such proposed amendment, modification, supplement, restatement or replacement (x) materially reduces the aggregate amount of the Debt Financing or the Equity Financing to be funded at Closing which has not otherwise been replaced by another binding financing source reasonably acceptable to the Company; provided, that the Company agrees that any increase in the amount of the Equity Financing by the Equity Financing Sources in at least the amount of any deficiency in the Debt Financing and a binding commitment on terms and conditions not materially less favorable to the Company’s interests than the existing Debt Commitment Letter from a reasonably acceptable alternative debt financing source in at least the amount of such deficiency, in each Leasehold Mortgagee;case, is acceptable, or (y) imposes new or additional conditions precedent to funding or otherwise expands, amends or modifies the then existing conditions precedent to funding to the Financing on the Closing, in each case in a manner that would reasonably be expected to (i) prevent, hinder or delay the Closing or (ii) adversely impact the ability of Parent and Merger Sub to enforce their rights against the other parties to the Commitment Letters or the ability of the Company to enforce its rights under the Equity Commitment Letters, in each of clauses (i) and (ii) in any material respect. Parent and Merger Sub shall not release or consent to the termination of the obligations of the Financing Sources under the Commitment Letters, except for assignments and replacements of an individual lender under the terms of or in connection with the syndication of the Debt Financing or as otherwise expressly contemplated by the Debt Commitment Letter, provided that such assignments or replacements would not prevent, delay or impair the availability of the Debt Financing under the Debt Commitment Letter or the consummation of the transactions contemplated by this Agreement.
(md) The Trust Deed Other than as permitted in clauses (a)-(c) above, in the event that Parent or Merger Sub become aware that any material portion of the Financing is reasonably likely not to be available at Closing under the Commitment Letters, Parent and Merger Sub shall provide that(i) promptly notify in writing the Company of such circumstances and the reasons therefor and (ii) use their respective reasonable best efforts to obtain alternative financing from alternative financial institutions reasonably acceptable to the Company in an amount sufficient to consummate the transactions contemplated by this Agreement upon conditions not materially less favorable to the Company’s interests than the existing Commitment Letters as promptly as practicable following the occurrence of such event (and in any event no later than the Closing). Parent shall furnish the Company with complete, correct and executed copies of any material definitive agreements with respect to the Financing (including any alternative financing agreement) promptly upon their execution and shall keep the Company reasonably informed of the status of its efforts to arrange and consummate the Financing.
(e) In the period between the date hereof and the Closing Date, upon the request of Parent and Merger Sub, the Company shall and shall cause its Subsidiaries and its and their respective officers, directors, managers, employees, accountants, consultants, legal counsel, agents and other representatives, at Parent’s sole expense, to cooperate reasonably in connection with the arrangement and obtaining of the Financing, including (i) providing to Parent, Merger Sub and their Financing Sources from time to time all financial and other pertinent information regarding the Company and its industry reasonably requested by them (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company and its Subsidiaries customary for such Debt Financing or reasonably necessary for the syndication of the Debt Financing by the Debt Financing Sources), (ii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with prospective lenders and sessions with rating agencies in connection with the Debt Financing, including direct contact between senior management (with appropriate seniority and expertise) and representatives (including accountants) of the Company and its Subsidiaries, on the one hand, and the Debt Financing Sources, potential lenders and investors for the Debt Financing, on the other hand, (iii) furnishing all financial statements reasonably required by the Commitment Letters within the time periods specified therein, (iv) assisting with the preparation and entering into as of the Effective Time of definitive agreements with respect to the Debt Financing (including review as of any disclosure schedules related thereto for completeness and accuracy) or the amendment of any of the Company’s or its Subsidiaries’ currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Debt Financing (provided, however, that prior to the institution Effective Time the Company shall only be required to amend any such agreement if the Guarantor shall provide the Company with indemnification satisfactory to the Company for the effects of any proceedings to foreclose such amendment), (v) assisting with the Trust Deed or preparation of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deedmaterials for rating agency presentations, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commencedoffering and syndication documents (including public and private information memoranda and lender presentations), business projections and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements similar marketing documents required in connection with the Debt Financing (provided, that any Improvementssuch presentations and similar documents shall contain disclosure and pro forma financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor and Parent shall be solely responsible for the preparation of any such pro forma financial statements contained therein, provided, that, the Company shall use its reasonable best efforts to cause its independent auditors to provide its reasonable cooperation and assistance in connection with the preparation of such pro forma financials) and other materials to be used in connection with obtaining the Debt Financing and all documentation and other information required by the Debt Financing Sources for compliance with applicable “know your customer” and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, (vi) cooperating reasonably with the Financing Sources’ due diligence, (vii) executing customary authorization and management representation letters, (viii) reasonably cooperating in satisfying the conditions precedent set forth in the Commitment Letters or any definitive document relating to the Financing (to the extent the satisfaction of such condition requires the cooperation of, and is within the control of, the Company and its Subsidiaries), including but not limited to construction loans(A) permitting, long term loans subject to appropriate confidentiality arrangements, the prospective lenders and refinancing permitted investors to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establishing bank and other accounts and security arrangements in connection with the foregoing, (ix) issuing customary representation letters to auditors and using reasonable best efforts to obtain legal opinions, surveys, title insurance, accountants’ comfort letters and consents to the use of accountants’ audit reports relating to the Company, (x) executing and delivering, as of the Effective Time, any guarantees, pledge and security documents, other definitive financing documents, or other certificates or documents contemplated by the Debt Commitment Letter and hedging agreements as may be reasonably requested by Parent or Merger Sub (including a customary certificate of the chief financial officer of the Company with respect to solvency matters and otherwise reasonably facilitating the pledging of collateral or provision of guarantees in connection with the Debt Financing), (xi) using reasonable best efforts to obtain such consents, approvals, authorizations and instruments which may reasonably be requested by Parent or Merger Sub to permit the consummation of the Debt Financing, including, but not limited to, collateral arrangements, including obtaining payoff letters, releases, terminations, landlord waivers and access agreements, waivers, consents, estoppels and approvals as may be required in connection therewith, (xii) using reasonable best efforts to ensure that the Financing Sources benefit from the existing lending relationships of the Company and its Subsidiaries, (xiii) using its reasonable best efforts to permit any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and Merger Sub at the Effective Time, and (xiv) as of the Effective Time, taking all corporate actions necessary to authorize the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately upon the Effective Time; provided that, notwithstanding anything to the contrary contained in this Agreement (including this Section 5.07), nothing in this Agreement shall require any cooperation to the extent that it would require the Company or any of its Subsidiaries or representatives, as applicable, to waive or amend any terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of Agreement or agree to pay any default by Tenant on commitment or other fees or reimburse any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of expenses or incur any Trust Deed liability prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) Effective Time. All insurance proceeds arising from damage non-public information or destruction of the Improvements other confidential information provided pursuant to this Section 5.07 shall be available for restoration thereof kept confidential in accordance with the Confidentiality Agreement, except that Parent and its Affiliates shall be permitted to disclose such information to potential syndicate members during syndication, subject to customary confidentiality undertakings by such potential syndicate members. The Company hereby consents to the extent Tenant use of its and its Subsidiaries’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is obligated under not intended to harm or disparage the Company, its Subsidiaries or their marks and on such other customary terms of this Lease to restore and conditions as the Improvements following such damage or destructionCompany may reasonably impose.
(pf) No loan may be Parent shall, if the Closing has not occurred, promptly upon request by the Company or promptly after termination of this Agreement (other than a termination pursuant to Section 7.01(c) or Section 7.01(d)(ii)), reimburse the Company for all documented reasonable out-of-pocket expenses and costs incurred in an amount which exceeds seventy-five percent (75%) connection with the performance by the Company or other Persons obligated under this Section 5.07 of the fair market value of the Improvements at the time the loan is entered intoits obligations under this Section 5.07.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Financing. Tenant may seek (a) Prior to obtain the Closing, each Seller shall use its reasonable best efforts to provide, and shall use reasonable best efforts to cause its Representatives and the TGE Entities and their respective Representatives to provide, assistance with the Debt Financing as is reasonably requested by Acquirors, in each case, in connection with the arrangement of, and the satisfaction on a loan timely basis of all relevant conditions precedent to, the Debt Financing. Such assistance shall include, but not be limited to: (i) reasonable participation in, and assistance with, the preparation of the Marketing Material and rating agency presentations; (ii) reasonable participation by senior management of the TGE Entities in a reasonable number of rating agency presentations (including with respect to finance the Improvements Existing Change of Control Notes Consents), meetings with prospective lenders, road shows and drafting sessions, in each case upon reasonable prior notice and at times and locations to refinance be mutually agreed in good faith; (iii) delivering the Improvements from time Financing Information to time during Acquirors (and such other financial and operational information reasonably requested by the Term. For such purpose onlyAcquirors or the Financing Sources), Tenant provided that Sellers shall have not be responsible for the right, with Landlord’s prior written approvalpreparation of pro forma or projected financial information, which shall not be unreasonably withheldprepared solely by Acquirors and Sellers shall have no liability with respect to such information prepared by Acquirors) as promptly as reasonably practicable once available; (iv) delivering customary authorization letters authorizing the distribution of Marketing Material to prospective investors (including in connection with any Debt Financing of TEP and its Subsidiaries pursuant to the Senior Bridge Facility (as such term is defined in the Debt Commitment Letter) solely in connection with the purchase, conditioned or delayedif any, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant Existing Change of Control Notes validly tendered pursuant to a promissory note Change of Control Offer, Alternate Offer or other offer to purchase as described in subclauses (i) and (ii) of Section 6.15(b)); (v) furnishing Acquirors and the Financing Sources promptly, and, in any event, at least four Business Days prior to the Closing Date, with all documentation and other information in respect of the TGE Entities that any Lender has requested in writing at least nine Business Days prior to the Closing Date that is required by Governmental Authorities under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (vi) assisting Acquirors in connection with the preparation by Acquirors of the Debt Financing Documents (and, in the case of any Debt Financing of TEP and its Subsidiaries pursuant to the Senior Bridge Facility (as such term is defined in the Debt Commitment Letter) or in connection with an offering of notes in lieu thereof solely in connection with the purchase, if any, of any Existing Change of Control Notes validly tendered pursuant to a trust deed Change of Control Offer, Alternate Offer or mortgage other offer to purchase as described in subclauses (collectivelyi) and (ii) of Section 6.15(b), executing and delivering the Debt Financing Documents with respect thereto) and the issuance of securities, borrowing of loans and/or granting of a security interest (and perfection thereof) in the Subject Interests, including (x) requesting that the transfer agent with respect to the applicable TGE Entity make any applicable notations in the equity register of the applicable TGE Entity reflecting the pledge of its equity interests that constitute collateral in favor of the Financing Sources or an agent or trustee on their behalf if required and (y) causing the Organizational Documents of the TGE Entities to be amended in a manner to permit or facilitate the Debt Financing and security interests granted in connection therewith, (vii) requesting customary independent accountants’ comfort letters (including customary “Trust Deed”)negative assurance” statements) and consents from the auditor(s) of the audited financial statements provided as part of the Financing Information, including issuing any customary representation letters in connection therewith to such auditor(s) in connection with any financial statements included in any offering documents in respect of the Debt Financing and (viii) cooperating as contemplated by Section 6.15. Landlord’s written approval Information provided by Sellers or denial the TGE Entities in connection with the Debt Financing shall only be provided to Tenant within twenty sources or potential sources of financing and rating agencies that have agreed to be bound by (20x) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1Confidentiality Agreement as if such Person(s) were party thereto or (y) customary confidentiality provisions. If Landlord does not respond Sellers hereby consent to the request within twenty (20) Business Daysuse of all of the TGE Entities’ logos in connection with the Debt Financing, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Sellers, the request TGE Entities, their respective Affiliates or their respective business, or the reputation or goodwill thereof. Acquirors acknowledge and agree that the obtaining of the Debt Financing shall be deemed approved. In not constitute a condition to Acquirors obligation to close the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under transactions contemplated by this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;Agreement.
(b) The Landlord Notwithstanding anything to the contrary in Section 6.4(a), (i) no Seller or TGE Entity or any of their respective Affiliates or any of their respective equityholders or governing bodies shall not be required to sign pass resolutions or consents to approve or authorize the execution of the Debt Financing Documents or execute or deliver any Trust Deed certificate, document, instrument or agreement in connection therewith or the NoteFinancing that is effective prior to the Closing (except for (A) the authorization letters set forth in Section 6.4(a)(iv) and (B) those relating to the Specified Funded Indebtedness Accommodations); (ii) no obligation of any Seller or TGE Entity or any of their respective Affiliates or any of their respective partners, members or Representatives under any certificate, document, instrument or agreement, entered into pursuant to the foregoing shall, without such Person’s prior express written consent, be effective until Closing (except for (A) the authorization letters set forth in Section 6.4(a)(iv) and (B) those relating to the Specified Funded Indebtedness Accommodations); (iii) no Seller or TGE Entity or any of their respective Affiliates or any of their respective partners, members or Representatives shall be required to pay any commitment or other similar fee, or otherwise become obligated thereunder;incur any other cost or expense or Liability (except for any cost or expense that is subject to the expense reimbursement provision expressly set forth in Section 6.4(e)), in connection with the Debt Financing; (iv) no such cooperation shall be required to the extent that any such action, in the good faith determination of any Seller or TGE Entity, would unreasonably interfere with the ongoing business or operations of any Seller or TGE Entity or any of their respective Affiliates; (v) no Seller or TGE Entity or any of their respective Affiliates or any of their respective partners, members or Representatives shall be required to deliver any information if it is not reasonably available to it or prepared in the ordinary course of its business; (vi) no Seller or TGE Entity or any of their respective Affiliates or any of their respective partners, members or Representatives shall be required to deliver any certificate, document, instrument or agreement if any representation and warranty or certification set forth therein would be inaccurate in any material respect or would reasonably be expected to result in personal liability; (vii) no such cooperation shall be required to the extent it would reasonably be expected to conflict with or violate any Law, or result in the contravention of, or result in a violation or breach of, or default under, any Contract of any Seller or this Agreement; (viii) other than the obligations of Sellers set forth in Section 6.4(a), no TGE Entity, nor any of their respective Affiliates or any of their respective partners, members or Representatives shall incur any Liability with respect to the Debt Financing; and (ix) no TGE Entity shall be a party to any agreement, certificate, document or instrument with respect to the Debt Financing (except with respect to (w) the authorization letters set forth in Section 6.4(a)(iv); (x) customary control agreements (which may be in the form of an issuer’s acknowledgement) with respect to Class B Shares and TE Units to the extent pledged by Acquirors as collateral under the Debt Financing; (y) any documents necessary for the cooperation contemplated in Section 6.4(a)(vi) and (z) any Debt Financing Documents with respect to the purchase of any Existing Change of Control Notes described in Section 6.4(a)(vi)).
(c) No such lienAcquirors shall use their reasonable best efforts to take, charge or encumbrance shall constitute a lien cause to be taken, all actions and do, or encumbrance upon cause to be done, all things, necessary, proper or advisable to arrange, consummate and obtain the Landlord’s fee title Financing (to the extent contemplated by the Commitment Letters to be funded on the Closing Date) on the Closing Date on terms and conditions no less favorable to Acquirors than the terms and conditions described in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trusteeCommitment Letters. Such actions shall include, and any lien which it createsbut not be limited to, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
using reasonable best efforts to: (i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though maintain in effect the same had been performed by Tenant;
Commitment Letters, provided that Acquirors may replace or amend the Debt Commitment Papers (j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedingsincluding adding new lenders, to proceed with foreclosure proceedingslead arrangers, bookrunners, syndication agents or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.similar entities
Appears in 3 contracts
Sources: Purchase Agreement (Tallgrass KC, LLC), Purchase Agreement (Tallgrass Holdings, LLC), Purchase Agreement (Kelso GP VIII, LLC)
Financing. Tenant may seek (a) Verizon shall use its commercially reasonable efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Improvements proceeds of, the Financing and, if applicable, the Replacement Financing on the terms and conditions described in the Financing Documents and Replacement Financing Documents, including using commercially reasonable efforts to (i) comply with its obligations and satisfy the conditions precedent to funding under the Financing Documents and, if applicable, Replacement Financing Documents; (ii) upon satisfaction of the conditions set forth in Section 3.02 of the Loan Facility (and/or, in respect of certainty of funding, such substantially equivalent conditions (or conditions that are more favorable to Verizon) as may appear in any Replacement Financing Document), consummate the Financing and, if applicable, the Replacement Financing at or prior to Closing; and (iii) cause the Financing Sources and, if applicable, Replacement Financing Sources to fund on the Closing Date the Financing and, if applicable, the Replacement Financing to the extent required to consummate the Transaction in accordance with the terms thereof (including, to the extent commercially reasonable, by promptly taking enforcement action under the Financing Documents and, if applicable, the Replacement Financing Documents in the event of a breach by any Financing Sources or Replacement Financing Sources).
(b) Verizon shall have the right to substitute the proceeds of consummated debt (including unsecured notes) or equity offerings for all or any portion of the Financing or, if applicable, Replacement Financing by reducing commitments under the Financing and, if applicable, any Replacement Financing; provided, that to the extent any consummated debt has a scheduled special or mandatory redemption right, such right is not exercisable prior to the Termination Date. Further, Verizon shall have the right to substitute commitments in respect of other debt or equity financing for all or any portion of the Financing from the same and/or alternative bona fide third-party financing sources (“Replacement Financing Sources”) so long as (i) all conditions precedent to effectiveness of definitive documentation for such debt or equity financing have been satisfied and the conditions precedent to funding under the debt financing or issuance of the equity financing are, in respect of certainty of funding, substantially equivalent to (or conditions that are more favorable to Verizon than) the conditions set forth in Section 3.02 of the Loan Facility, and (ii) in respect of any debt financing, prior to funding of the loans thereunder, the commitments in respect of such debt financing are subject to restrictions on assignment which are substantially equivalent to or more favorable to the Verizon than the restrictions set forth in Section 8.07 of the Loan Facility (any such debt or equity financing which satisfies the foregoing clauses (i) and (ii), the “Replacement Financing”; the definitive documentation for any such Replacement Financing, the “Replacement Financing Documents”).
(c) Verizon shall have the right from time to time during to amend, replace, supplement or otherwise modify, or waive any provision or remedy under, the Term. For such purpose onlyFinancing Documents or Replacement Financing Documents; provided, Tenant that Verizon shall have not, without the right, with Landlord’s prior written approvalconsent of Vodafone, at any time prior to the Closing: (i) permit any amendment, replacement, supplement or modification to, or any waiver of any material provision or remedy under, any Financing Document or Replacement Financing Document if such amendment, replacement, supplement, modification or waiver (A) adds any new (or modifies, in a manner materially adverse to Verizon, any existing) conditions to the consummation of the Financing or Replacement Financing (as applicable), (B) reduces the aggregate amount of the Financing and the Replacement Financing other than to the extent that (1) such reduction is required by the terms of the Loan Facility or (2) Verizon has available to it Replacement Financing or cash on hand in an amount equal to such reduction, (C) materially adversely impacts the ability of Verizon to enforce its rights against other parties to any Financing Document as so amended, replaced, supplemented, modified or waived, relative to the ability of Verizon to enforce its rights against such other parties to any Financing Document as in effect on the date hereof or Replacement Financing Document as in effect on the date of execution thereof, or (D) prevents, impedes or materially delays the consummation of the transactions contemplated by this Agreement; provided, further, that notwithstanding the foregoing, Verizon may amend the Financing Documents and/or Replacement Financing Documents to add lenders, lead arrangers, syndication agents, documentation agents or similar entities who had not executed any Financing Document and/or Replacement Financing Document; or (ii) terminate the Loan Facility other than to the extent that (A) the commitments under the Loan Facility have been reduced to zero in accordance with its terms or (B) Verizon has obtained Replacement Financing in an aggregate amount equal to the commitment under the Loan Facility at the time of such termination of the Loan Facility. Verizon shall promptly following execution deliver to Vodafone copies of any such amendment, replacement (including any Replacement Financing Document), supplement, modification or waiver (which may be redacted to delete any compensation information). Notwithstanding anything to the contrary in this Agreement, Verizon agrees that it shall not reduce the aggregate amount of all unfunded commitments in respect of the Financing and, if applicable, Replacement Financing (whether as a result of a disposition of assets, debt issuance or equity issuance but, for the avoidance of doubt, not as a result of the funding of the loans thereunder) to an amount less than Twenty Billion Dollars ($20,000,000,000) without Vodafone’s consent, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;.
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, Verizon acknowledges and any lien which it creates, shall expire on or before the date of expiration of this Lease;
agrees that Vodafone and its Affiliates (e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide thatincluding, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust DeedClosing, the holder Sold Entities), their respective Representatives and, prior to the Closing, the Partnership or beneficiary thereof any of its Subsidiaries and their respective Representatives, shall notify Landlord in writing that such proceedings not have any responsibility for, or negotiations are incur any liability to, any Person under or pursuant to be commencedthe Financing or Replacement Financing pursuant to the Financing Documents or Replacement Financing Documents, if any, and Landlord that Verizon shall have the rightindemnify and hold harmless Vodafone and its Affiliates (including, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal prior to the full amount then owing under said Trust DeedClosing, including accrued interestthe Sold Entities), reasonable attorneys’ fee for their respective Representatives and, prior to the holder Closing, the Partnership and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or beneficiary, and applicable statutory costs and allowances if expenses suffered or incurred by any foreclosure proceedings shall have commenced. All loan agreements of them in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain Financing or the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default Replacement Financing pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by TenantFinancing Documents or Replacement Financing Documents, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof if any, except to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) resulting from any breaches of the fair market value representations, warranties or covenants of Vodafone under this Agreement. Verizon shall keep Vodafone reasonably informed with respect to all material activity concerning the status of the Improvements at financing contemplated by the time Financing Documents and Replacement Financing Documents (if any), it being understood, for the loan is entered intoavoidance of doubt, that nothing in this Section 5.9(d) shall relieve Vodafone of any liability pursuant to Section 8.3 or require Verizon to provide indemnification in respect of any such liability.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Vodafone Group Public LTD Co), Stock Purchase Agreement (Verizon Communications Inc)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this LeaseThe Parent Group collectively will have, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such of the Closing Date, sufficient cash and cash equivalents, available lines of credit or other sources of immediately available funds to Tenant pursuant to a promissory note consummate the Merger and a trust deed or mortgage (collectively, the “Trust Deed”)other transactions contemplated by this Agreement that require payment on the Closing Date. Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Parent has delivered to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure Company a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, true and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession complete copy of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
executed Debt Commitment Letter (k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice redacted portions of any Trust Deed fee letters, which redactions shall be limited to pricing, fee amounts, price flex and other economic terms and in no case shall such redactions relate to terms that would be reasonably likely to adversely affect the conditionality, enforceability, availability, termination or aggregate amount of the Debt Financing). The Debt Commitment Letter has not been amended or modified in any manner prior to the execution and/or recording and delivery of same this Agreement. Neither Parent nor any of its Affiliates has entered into any agreement, side letter or other commitment or arrangement relating to the financing of the transactions contemplated by Tenantthis Agreement that could affect the availability of the Debt Financing or the timing of the Closing, and shall accompany such notice with a true copy of such Trust Deed other than as set forth in the Debt Commitment Letter and the Note secured thereby; and
(o) All insurance fee letters related thereto. The proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof Debt Financing (both before and after giving effect to the extent Tenant exercise of any or all “market flex” provisions related thereto), together with any other sources of funds immediately available to Parent or Merger Sub at Closing (including cash and cash equivalents and available lines of credit held by the Company (assuming the accuracy of the representations and warranties of the Company pursuant to this Agreement and the performance by the Company of its obligations hereunder) and the proceeds of the loans under existing revolving credit facilities of Parent), will be sufficient to consummate the transactions contemplated hereby. As of the execution and delivery of this Agreement, the commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect. As of the execution and delivery of this Agreement, the Debt Commitment Letter is obligated in full force and effect and represents a valid, binding and enforceable obligation of the Debt Commitment Parties, to provide the financing contemplated thereby subject only to the satisfaction or waiver of the Financing Conditions and, subject to the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors. Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Debt Financing. As of the execution and delivery of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent under any term of the Debt Commitment Letter. As of the execution and delivery of this Agreement, assuming the conditions precedent set forth in Section 6.1 and Section 6.2 are satisfied (other than those that by their nature are to be satisfied at the Closing), Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Debt Financing will not be made available to Parent on the Closing Date. There are no conditions precedent related to the funding of the full amount of the Debt Financing other than the Financing Conditions contained in the Debt Commitment Letter. Parent understands and acknowledges that under the terms of this Lease Agreement, the obligations of Parent and Merger Sub to restore consummate the Improvements following such damage Merger are not in any way contingent upon or destructionotherwise subject to the consummation by Parent or Merger Sub of any financing arrangements, the obtaining by Parent or Merger Sub of any financing or the availability, grant, provision or extension of any financing to Parent or Merger Sub.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 3 contracts
Sources: Merger Agreement (Jetblue Airways Corp), Merger Agreement (Spirit Airlines, Inc.), Merger Agreement (Jetblue Airways Corp)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will Each of Parent and Acquisition Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of the Equity Financing and the Debt Financing on the terms and conditions described in the Equity Commitment Letter or the Debt Commitment Letter, as applicable (as each may be amended in accordance with the terms below), including using reasonable best efforts to (i) enter into definitive agreements with respect thereto on the terms and conditions contained therein and (ii) to satisfy on a Lender Recognition timely basis (taking into account the expected timing of the Closing) all conditions, and otherwise comply with all terms, applicable to Parent and Acquisition Sub in such definitive agreements within their control. Parent and Acquisition Sub may not agree to or permit any amendment, supplement or other modification to be made to, or any waiver of any material provision or remedy under, the Equity Commitment Letter without the consent of the Company. Parent and Acquisition Sub may not agree to or permit any amendment, supplement or other modification to be made to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the definitive agreements relating to the Debt Financing without the consent of the Company if such amendments, supplement, other modification or waivers would or could reasonably be expected to (w) reduce the aggregate amount of the Debt Financing below the amount required to repay or refinance the debt contemplated in this Agreement with or the Leasehold Mortgagee;Debt Commitment Letter, (x) impose new or additional conditions to the receipt of the Debt Financing or amend or otherwise modify the existing conditions to the receipt of the Debt Financing so as to adversely impact the ability of Parent or Acquisition Sub to timely consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby, (y) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (z) adversely impact the ability of Parent or Acquisition Sub to enforce its rights against the other parties to the Debt Commitment Letter (provided, that, for the avoidance of doubt, Parent and Acquisition Sub may replace or amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities).
(b) The Landlord If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Parent and Acquisition Sub shall use their respective reasonable best efforts to arrange and obtain alternative debt financing from alternative sources in an amount sufficient when combined with cash on hand and other financing arrangements to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; provided, however, that Parent and Acquisition Sub shall not be required to sign seek or accept any Trust Deed such alternate debt financing if the terms or the Note, or otherwise become obligated thereunder;
conditions thereof are less favorable to Parent (c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises reasonable judgment of Parent) than the Debt Financing to be replaced, including with respect to economic terms and conditions. Parent and Acquisition Sub shall keep the Company informed on a reasonably current basis in reasonable detail of the all material activity concerning the status of the Debt Financing or their reversionary interest in any alternative debt financing and concurrently provide final copies of the Improvements;
(d) Any interest in material definitive documents for the Premises which Debt Financing provided to the Trust Deed establishes in a trustee, lenders. Parent and any lien which it creates, Acquisition Sub shall expire on or before each give the date Company prompt notice of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease any material breach by any Leasehold Mortgagee party of the Equity Commitment Letter, the Debt Commitment Letter or any definitive document related to the Equity Financing or Debt Financing of which Parent or Acquisition Sub becomes aware or (ii) the receipt by it of any written notice with respect to any material breach, default, termination or repudiation by any party to the applicable the Equity Commitment Letter, the Debt Commitment Letter or any definitive document related to the Equity Financing or Debt Financing, as though applicable, of any material provisions of the same had been performed Equity Commitment Letter, Debt Commitment Letter or any definitive document related to the Equity Financing. As soon as reasonably practicable, Parent shall provide any information reasonably requested by Tenant;
(j) The time available the Company relating to a Leasehold Mortgagee any circumstance referred to initiate foreclosure proceedingsin the immediately preceding sentence. Notwithstanding anything in this Section 5.18 or in any other provision of this Agreement, to proceed with foreclosure proceedingsParent and Acquisition Sub acknowledge and agree that the obtaining of the Debt Financing, or any alternative debt financing, is not a condition to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionClosing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Amalgamation Agreement, Agreement and Plan of Amalgamation (SeaCube Container Leasing Ltd.)
Financing. Tenant may seek (a) Prior to the earlier of the Closing Date and the termination of this Agreement in accordance with Section 8.1, each of Parent, Guarantor and Merger Sub shall use, and shall cause their respective Affiliates to use, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, reasonably proper or advisable to arrange and obtain the Debt Financing and Equity Financing on or prior to the Closing Date and as provided in this Agreement, including (i) negotiating definitive agreements with respect to the Debt Financing on the terms and conditions described in the Financing Letters and the Debt Fee Letters (or on such other terms acceptable to Guarantor, so long as such terms do not constitute a Prohibited Condition), (ii) maintaining in effect each of the Debt Financing Documents until the Transactions are consummated, (iii) satisfying, or causing to be satisfied on or prior to the Closing Date, all conditions to the closing of, and funding under, the Debt Financing Documents applicable to Parent, Guarantor, Merger Sub or any of their respective Affiliates that are within its control, (iv) in the event the conditions set forth in Section 7.1 and 7.2 are satisfied or waived, drawing upon and consummating the Debt Financing and Equity Financing at or prior to the Closing, and (v) enforcing its rights under the Debt Financing Documents. Guarantor shall (x) cause there to be sufficient availability under the Guarantor Credit Facility (after giving effect to the amendment thereto or refinancing thereof provided for in the Debt Commitment Letter) on the Closing Date to fund the amount of the Debt Financing required to be funded under the Guarantor Credit Facility (after giving effect to the amendment thereto or refinancing thereof provided for in the Debt Commitment Letter) on the Closing Date in order for the representation in Section 5.9(a) to be true on the Closing Date, and (y) refrain from borrowing or other utilization of the Guarantor Credit Facility or the incurrence of any other indebtedness, if the funding of the amount of the Debt Financing required to be funded on the Closing Date in order for the representation in Section 5.9(a) to be true on the Closing Date would cause Guarantor to exceed the maximum dollar amount allowed under the Senior Notes Indenture.
(b) If Parent, Guarantor or any of their respective Affiliates becomes aware that any portion of the Debt Financing has become unavailable on the terms and conditions contemplated in the Debt Commitment Letter, then, (i) Parent shall promptly so notify the Company in writing, and (ii) each of Parent, Guarantor and Merger Sub shall use, and shall cause their respective Affiliates to use, reasonable best efforts to arrange to obtain a loan to finance alternative debt financing from the Improvements same or alternative sources as promptly as practicable following the occurrence of such event on terms and to refinance conditions not less favorable in any material respect, in the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayedaggregate, to assign Parent, Guarantor, Merger Sub and their respective Affiliates than those contained in the Debt Commitment Letter and in an amount, together with the aggregate proceeds of the Equity Financing and all other sources of cash available to Parent on the Closing Date, sufficient for Parent, Guarantor, Merger Sub and their respective Affiliates to pay the Financing Uses on the terms and conditions contemplated hereby (the “Alternative Financing”); provided, that in no event shall the terms of any Alternative Financing prevent, delay or part materially impede or impair the ability of Tenant’s interest under Parent, Guarantor, Merger Sub or any of their respective Affiliates to consummate the Transactions in accordance with the terms of this LeaseAgreement; provided, further, that, notwithstanding anything herein to the contrary, in no event shall reasonable best efforts be construed to require that Parent, Guarantor, Merger Sub or their respective Affiliates to (A) pay any fees or original issue discount in excess of those contemplated by the Debt Commitment Letter and/or the Debt Fee Letters, in each case, as security in effect of the date hereof or (B) agree to pricing or other economic terms that are less favorable (taken as a whole) than those contemplated by the Debt Commitment Letter and/or the Debt Fee Letters, in each case, as in effect of the date hereof (in each case of clauses (A) and (B), assuming the full exercise of any “market flex” provisions in the Debt Fee Letters). Parent and Guarantor shall deliver to the Company true and complete copies of all Contracts or other arrangements pursuant to which any alternative sources have committed to provide the Alternative Financing (the “Alternative Financing Documents”) as soon as reasonably practicable after execution thereof; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms and pricing caps, “market flex” provisions and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any Institutional Lender (terms that would reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approvedProhibited Condition. In the event Tenant assigns all or Alternative Financing is obtained, any reference in this Agreement to (x) the “Debt Financing” shall be deemed to include the Alternative Financing, (y) the “Debt Financing Documents” shall be deemed to include the Alternative Financing Documents and (z) “Debt Financing Sources” shall be deemed to include the financing sources providing the Alternative Financing. In the event any portion of Tenant’s Interest the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Documents and to secure a loan permitted under this Section 14.2the extent such portion is not replaced by the Alternative Financing to the extent required by the foregoing clause (ii), then Parent shall promptly notify the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;Company.
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon Prior to the Landlord’s fee title in earlier of the Premises or their reversionary interest in Closing Date and the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration termination of this Lease;
(e) The Trust Deed imposes no financial obligations on the LandlordAgreement in accordance with Section 8.1, contingent or otherwise;
(f) The Trust Deed neither Parent, Guarantor, Merger Sub nor any of their respective Affiliates shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by agree to or permit any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available amendments or modifications to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) Debt Financing Document without the prior written consent of each Leasehold Mortgagee;the Company if such amendments or modifications would be a Prohibited Condition or (ii) so long as this Agreement remains in effect, terminate the Debt Commitment Letter. Without limiting the generality of the foregoing, neither Parent, Guarantor, Merger Sub nor any of their respective Affiliates shall release or consent to the termination of the obligations of the other parties to any Debt Financing Document.
(md) The Trust Deed shall provide thatParent shall, prior to the institution earlier of the Closing and the termination of this Agreement in accordance with Section 8.1, (i) give the Company prompt written notice (A) upon becoming aware of any proceedings material breach of any provision of, or termination by any party to foreclose any Debt Financing Document or any other definitive agreement with respect to the Trust Deed Debt Financing, (B) upon the receipt of any written notice or of negotiations other written communication from any Debt Financing Source with respect to accept an assignment any threatened breach or threatened termination in lieu writing by any Debt Financing Source with respect to the Debt Financing, and (C) if Parent at any time believes that Guarantor will not be able to obtain all or any portion of the foreclosure Debt Financing or Equity Financing on the terms, in the manner, or from the sources contemplated by the Debt Financing Documents; and (ii) otherwise keep the Company informed on a reasonably current basis of the Trust Deedstatus of Parent’s, Guarantor’s, Merger Sub’s and their respective Affiliates’ efforts to arrange the holder Debt Financing or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty Alternative Financing (60as applicable) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust DeedEquity Financing, including accrued interest, reasonable attorneys’ fee regarding the appointment of additional arrangers for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionDebt Financing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (SpartanNash Co), Merger Agreement (SpartanNash Co)
Financing. Tenant may seek (a) Parent shall use reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Improvements Financing on the terms and conditions described in the Commitment Letter and in a timely manner, including (i) maintaining in effect the Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Commitment Letter on terms and conditions contemplated by the Commitment Letter and (iii) satisfying on a timely basis all conditions to the funding of the Financing on the Closing Date applicable to Parent in the Commitment Letter and the definitive agreements with respect thereto and comply with its obligations thereunder. Parent shall have the right from time to time during the Term. For such purpose onlyto amend, Tenant shall have the rightreplace, with Landlord’s prior written approvalsupplement or otherwise modify, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part waive any of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyits rights under, the “Trust Deed”). Landlord’s written approval Commitment Letter and/or substitute other debt or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns equity financing for all or any portion of Tenant’s Interest the Financing from the same and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to secure a loan or waiver of any provision of the Commitment Letter and the definitive agreements with respect thereto that amends the Financing and/or substitution of all or any portion of the Financing shall not impose additional conditions precedent to the Financing as set forth in the Commitment Letter that could reasonably be expected to prevent or materially delay the consummation of the Transactions. Parent shall be permitted to reduce the amount of Financing under this Section 14.2the Commitment Letter in its sole discretion, then provided that Parent shall not reduce the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement Financing to an amount committed below the amount that is required, together with the Leasehold Mortgagee;financial resources of Parent and Merger Sub, including cash on hand of Parent and the Company, to consummate the Merger. If any portion of the Financing becomes unavailable in the manner or from the sources contemplated in the Commitment Letter and such portion is reasonably required (taking into account cash on hand and other financial resources available to Parent) to fund the Merger Consideration, Parent shall use its reasonable best efforts to arrange and obtain alternative financing in an amount sufficient to consummate the Transactions as promptly as reasonably practicable following the occurrence of such event. Parent shall promptly provide the Company with the documentation evidencing such alternative sources of financing, including all relevant agreements, other financing documents and any proposed amendments or waivers thereto, and shall give the Company prompt notice (but in any event within five (5) Business Days) of any material breach by any party to the Commitment Letter that becomes known to Parent or any termination of the Commitment Letter. Parent shall keep the Company reasonably informed on a current basis of the status of its effort to arrange the Financing.
(b) The Landlord For the avoidance of doubt, if Parent fails to obtain the Financing contemplated by the Commitment Letter or any alternative financing, Parent shall not continue to be required obligated to sign any Trust Deed perform its obligations under this Agreement, including this Section 6.06, and to consummate the Merger on the terms contemplated hereby (subject only to satisfaction or waiver of the Note, or otherwise become obligated thereunder;conditions set forth in Section 7.01 and 7.02) unless and until this Agreement is terminated in accordance with Article VIII.
(c) No such lienIn connection with the Financing, charge or encumbrance the Company shall constitute a lien or encumbrance upon use its commercially reasonable efforts to obtain, at Parent’s expense, an accountant’s comfort letter with respect to financial information relating to the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate Company that may be included in any way offering memorandum used by Parent in connection with the Landlord’s fee or leasehold title (respectively) or reversionary interest in Financing. For the Improvements or avoidance of doubt, the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue failure of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or Company to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease comfort letter shall not be materially modifieddeemed to be a breach of this Agreement and Parent shall continue to be obligated to perform its obligations under this Agreement, amended or surrendered (except upon termination pursuant including its obligation to this Lease) without consummate the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior Merger on the terms and subject to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment conditions contained in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionAgreement.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Arbitron Inc), Agreement and Plan of Merger (Nielsen Holdings N.V.)
Financing. Tenant may seek (a) Parent and Merger Sub will use reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper and advisable to arrange and obtain the Improvements proceeds of the Financing on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to (i) maintain in full force and effect the Commitment Letter, (ii) negotiate definitive financing agreements with respect to the Financing on terms and conditions that are not materially less favorable to Parent and Merger Sub than the terms and conditions contemplated by the Commitment Letter and enter into, on or prior to the Closing Date, definitive financing agreements with respect to the Financing, and promptly upon execution thereof provide executed copies of such definitive agreements to the Company, (iii) satisfy on a timely basis (or obtain the waiver of) (taking into account the expected timing of the Closing) all conditions and covenants, and otherwise comply with all terms and conditions, applicable to Parent and Merger Sub in the Commitment Letter and such definitive agreements within their control, (iv) consummate the Financing at or prior to Closing, and (v) enforce their rights under the Commitment Letter. In the event that all conditions to the Commitment Letter have been satisfied or, upon funding will be satisfied, Parent and Merger Sub shall use their reasonable best efforts to cause the Financing Sources and the other Persons providing or committing to provide the Financing to comply with their obligations under the Commitment Letter and the definitive financing agreements entered into in connection with the Financing and to fund on or before the Closing Date the Financing required to consummate the Merger and the other transactions contemplated by this Agreement (including taking enforcement action, to cause the Financing Sources and the other Persons providing or committing to provide the Financing to fund such Financing). Parent and Merger Sub will keep the Company informed on a reasonably current basis of the status of their efforts to arrange the Financing and to satisfy the conditions thereof, including (A) promptly notifying the Company of (1) any actual, threatened or alleged material breach or default by any party to the Commitment Letter or any definitive financing agreement entered into in connection with the Financing, if such breach or default would reasonably be expected to affect the timely availability of, or the amount of, the Financing and (2) the receipt by any of Parent or Merger Sub or any of their respective Representatives of any notice or other communication from time any Financing Source or any other Person with respect to time during any material dispute or disagreement between or among any parties to any Commitment Letter or any definitive financing agreement entered into in connection with the Term. For Financing, if such purpose onlydispute or disagreement would reasonably be expected to affect the timely availability of, Tenant shall have or amount of, the rightFinancing, and (B) upon the Company’s reasonable request, advising and updating the Company, in a reasonable level of detail, with Landlord’s respect to the status (and any material developments concerning such status) and proposed funding date thereunder. Without the prior written approvalconsent of the Company, which shall Parent and Merger Sub will not be unreasonably withheldagree, conditioned permit, or delayedotherwise consent, to assign all any amendment of, supplement or part modification to, or waiver under, the Commitment Letter or the definitive agreements relating to the Financing if such amendment, supplement, modification or waiver (x) would reduce the aggregate cash amount of Tenant’s interest under proceeds of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing), (y) would change or impose new or additional conditions or otherwise expands or amends any of the conditions to the receipt of the Financing from those set forth in the Commitment Letter on the date of this LeaseAgreement or (z) would otherwise reasonably be expected to (1) prevent or materially delay the Closing Date or (2) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust DeedRestricted Commitment Letter Amendments”), other than a waiver of any closing conditions by lender(s) or their agents. Landlord’s written approval Parent and Merger Sub may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or denial similar entities that have not executed the Commitment Letter as of the date of this Agreement, if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Commitment Letter Amendment. In addition, Parent and Merger Sub shall be provided not permit or consent to Tenant within twenty (20) Business Days any waiver of Tenant’s written requestany remedy under the Commitment Letter or to any early termination of the Commitment Letter. For purposes of this Agreement, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond references to the request within twenty (20) Business Days, the request “Commitment Letter” shall be deemed approved. In the event Tenant assigns all include such documents as permitted or any portion of Tenant’s Interest to secure a loan permitted under required by this Section 14.25.11 to be amended, then modified, supplemented or waived, in each case from and after the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;date of such amendment, supplement, modification or waiver.
(b) The Landlord shall not be required If, notwithstanding the use of reasonable best efforts by Parent and Merger Sub to sign satisfy their obligations under this Section 5.11, any Trust Deed of the Financing or the Note, Commitment Letter (or any definitive financing agreement relating thereto) expire or are terminated or otherwise become obligated thereunder;
(c) No such lienunavailable prior to the Closing, charge in whole or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trusteepart, for any reason, Parent and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
Merger Sub will (i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though promptly notify the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving Company of such notice expiration, termination or unavailability and (ii) use its reasonable best efforts promptly to purchase the Trust Deed and the indebtedness arrange for alternative financing (which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may will be in an amount which exceeds seventy-five percent (75%sufficient to pay, when added to the other resources of Parent and other financing arrangements, the Required Amount) from other sources on terms and conditions not materially less favorable, taken as a whole, to Parent and Merger Sub than the terms and conditions of the fair market value Financing contained in the Commitment Letter to replace the Financing contemplated by such expired or terminated or unavailable commitments or agreements (“Alternative Financing”). Copies of each commitment letter and other agreement relating to the Improvements at Alternative Financing (the time “Alternative Commitment Letters”) shall be promptly provided to the loan is entered into.Company (except for customary engagement letters and fee letters, redacted copies of which fee letters will be delivered). If applicable, references in this Agreement to
Appears in 2 contracts
Sources: Merger Agreement (Rockwood Holdings, Inc.), Merger Agreement (Albemarle Corp)
Financing. Tenant may seek (a) Spinco shall use reasonable best efforts to obtain a loan (i) maintain in effect, until the earlier of the funding of the initial funding of the Financing (as defined below) and the funding of the Permanent Financing (as defined below) (in each case, in an amount sufficient to finance fund the Improvements Spinco Cash Distribution), the commitment letter, dated as of the date this Agreement (including: (A) all exhibits, schedules, annexes and amendments to refinance such agreement in effect as of the Improvements date hereof; and (B) any associated fee letters (together, as amended, restated, replaced, supplemented or otherwise modified from time to time during in accordance with the Term. For terms of this Agreement and thereof, the “Spinco Commitment Letter”)), from the financing sources party thereto (together with all additional lenders, agents and financing sources added to the Spinco Commitment Letter, the “Spinco Lenders”), pursuant to which, among other things, the Spinco Lenders have committed to provide Spinco with debt financing in the amount set forth therein (the debt financing contemplated by the Spinco Commitment Letter, together with any amendment, modification, supplement, restatement, substitution or waiver thereof in accordance with the terms of this Agreement being referred to as the “Financing”), (ii) materially comply with the obligations that are set forth in the Spinco Commitment Letter that are applicable to Spinco and satisfy on a timely basis all conditions precedent in the Spinco Commitment Letter that are within its control, and (iii) fully enforce the rights of Spinco under the Spinco Commitment Letter.
(b) In the event any funds in the amounts set forth in the Spinco Commitment Letter or the Financing Agreements, or any portion thereof, become unavailable on the terms and conditions contemplated in the Spinco Commitment Letter or the Financing Agreements, Pluto (in consultation in good faith with Utah) shall cause Spinco to, and Utah shall, and shall cause its Subsidiaries to, use reasonable best efforts to cooperate to arrange to obtain promptly any such purpose onlyportion from the same or alternative sources, Tenant in an amount sufficient, when added to the portion of the Financing that is available, to allow Spinco to make the Spinco Cash Distribution (the “Alternative Financing”), and to obtain a new financing commitment that provides for such financing; provided, that (i) the terms of the Alternative Financing must (A) not result in any adverse Tax consequences to Pluto and its Subsidiaries, including as to the Tax-Free Status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) be customary and reasonable in light of then-prevailing market terms and (ii) none of Spinco, any Spinco Entity or any Utah Entity shall have agree, or be required to agree, (A) to terms and conditions of the rightAlternative Financing if the consummation thereof on such terms and conditions, taking into account and after giving effect to the Spinco Cash Distribution, the Combination and the other transactions contemplated hereby, would result in Spinco having a Below Investment Grade Rating or (B) to any Alternative Financing if, after giving effect to such Alternative Financing, the Weighted Average Cost of the Available Debt Financing would be in excess of the percentage set forth on Section 8.8 of the Utah Disclosure Schedule.
(c) Spinco shall give Utah prompt written notice upon it obtaining knowledge of (i) any material breach (or threatened material breach) or default (or any event or circumstance that, with Landlord’s or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to the Spinco Commitment Letter, (ii) any actual or threatened withdrawal, repudiation or termination of the Financing by any of the Spinco Lenders, (iii) any material dispute or disagreement between or among any of the parties to the Spinco Commitment Letter, and (iv) any amendment or modification of, or waiver under, the Spinco Commitment Letter. Spinco shall not, without the prior written approvalconsent of Utah, which amend, modify, supplement, restate, substitute, replace, terminate, or agree to any waiver under the Spinco Commitment Letter; provided that notwithstanding the foregoing, Spinco may (i) implement or exercise any of the “market flex” provisions exercised by the Spinco Lenders in accordance with the Spinco Commitment Letter as of the date hereof or (ii) amend and restate the Spinco Commitment Letter or otherwise execute joinder agreements to the Spinco Commitment Letter solely to add additional Spinco Lenders.
(d) Until the earlier of the Closing and the valid termination of this agreement in accordance with Article X, each of Spinco and Utah agrees to cooperate and use reasonable best efforts to cause the arrangement and consummation of the Financing, including, without limitation, by (i) negotiating definitive agreements with respect thereto, on the terms and conditions contained in the Spinco Commitment Letter or on such other terms as are reasonably acceptable to Pluto and that are not materially less favorable in the aggregate to Spinco or Utah than those in the Spinco Commitment Letter as in effect on the date hereof; provided, that (A) Pluto’s consent, in its sole discretion, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any adverse Tax consequences to Pluto and its Subsidiaries as to the Tax-Free Status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) Pluto’s consent, not to be unreasonably withheld, conditioned or delayed, shall be required in respect of any such other terms to assign the extent such terms would reasonably be expected to result in any other adverse Tax consequences to Pluto and its Subsidiaries (the “Financing Agreements”), (ii) satisfying on a timely basis all conditions precedent in the Spinco Commitment Letter and the Financing Agreements that are within the control of Utah or part any of Tenantits Subsidiaries, and (iii) arranging as promptly as reasonably practicable the Financing prior to the Closing on the terms and conditions set forth in the Spinco Commitment Letter or on such other terms as are reasonably acceptable to Pluto and that are not materially less favorable in the aggregate to Spinco or Utah than those in the Spinco Commitment Letter as in effect on the date hereof; provided, that (A) Pluto’s interest consent, in its sole discretion, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any adverse Tax consequences to Pluto and its Subsidiaries as to the Tax-Free Status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) Pluto’s consent, not to be unreasonably withheld, conditioned or delayed, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any other adverse Tax consequences to Pluto and its Subsidiaries. Pluto hereby consents to the use of Spinco’s and its Subsidiaries’ logos in connection with the Financing and solely in a manner that is not intended or reasonably likely to harm or disparage the reputation or goodwill of the relevant party, or any of their respective intellectual property rights. Spinco and Utah shall, upon request by Pluto, each keep Pluto informed in reasonable detail of the status of its efforts to arrange the Financing and as promptly as practicable provide copies of then-current drafts of the Financing Agreements and any definitive agreements relating to the Permanent Financing.
(e) Notwithstanding anything herein to the contrary, if the Financing is available on terms contemplated by the Spinco Commitment Letter or otherwise on terms that are reasonably satisfactory to Pluto and not materially less favorable in the aggregate to Spinco or Utah than those in the Spinco Commitment Letter as in effect on the date hereof; provided, that (A) Pluto’s consent, in its sole discretion, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any adverse tax consequences to Pluto and its Subsidiaries as to the tax-free status of the transactions contemplated by the Transaction Documents (as determined by Pluto in good faith) and (B) Pluto’s consent, not to be unreasonably withheld, conditioned or delayed, shall be required in respect of any such other terms to the extent such terms would reasonably be expected to result in any other adverse tax consequences to Pluto and its Subsidiaries, and all conditions to the Closing set forth in Article IX have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing), Pluto shall cause Spinco to, and Spinco shall, immediately prior to the date of the Distribution incur the indebtedness provided for under this Leasethe Spinco Commitment Letter and the Financing Agreements and use the proceeds thereof to make a payment to Pluto in an aggregate amount equal to the Spinco Cash Distribution, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant on and pursuant to a promissory note the terms of the Separation and a trust deed Distribution Agreement. Spinco shall not incur the indebtedness contemplated by the Financing prior to the date that is one Business Day prior to the date of the Distribution without Utah’s prior written consent (not to be unreasonably withheld, conditioned or mortgage delayed).
(collectivelyf) Notwithstanding the foregoing, in the “Trust Deed”). Landlord’s written approval or denial event of termination of this Agreement pursuant to Article X, Utah shall, and shall cause its Subsidiaries to, (A) pay Pluto an amount of cash equal to 43% of the Financing Obligations (such payment to be provided to Tenant made promptly and in any event within twenty ten (2010) Business Days of Tenant’s delivery by Pluto of a written requestrequest therefor accompanied by reasonable supporting documentation evidencing such Financing Obligations) and (B) indemnify and hold harmless Pluto, which shall contain its Subsidiaries and its and their Representatives from and against 43% of any Losses (other than fees and expenses of counsel, accountants, consultants or other advisors) actually suffered or incurred by them in connection with the Financing or the Permanent Financing, and any information regarding the assignee’s financial strength, reputation and experience delineated utilized in Section 12.1. If Landlord does not respond connection therewith (other than information provided by or on behalf of Pluto or any of its Subsidiaries in writing prior to the request within twenty (20Closing Date) Business Daysexcept to the extent suffered or incurred as a result of the gross negligence, willful misconduct or material breach of this Agreement, the request shall be deemed approved. In the event Tenant assigns all Spinco Commitment Letter or any portion Financing Agreement by Pluto or any of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:its Subsidiaries.
(ag) Landlord will enter into a Lender Recognition Agreement Each of Pluto, Spinco and Utah agrees to cooperate and use reasonable best efforts to take, or cause to be taken, and to cause their respective Representatives to take or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable and proper in connection with the Leasehold Mortgagee;
arrangement, marketing and consummation of the issuance of any debt securities or the incurrence of any other long-term debt financing by Spinco in lieu of the Financing (bsuch financing, the “Permanent Financing”), on or prior to the Closing Date, including (i) The Landlord consulting in good faith on the terms and conditions of any Permanent Financing, (ii) participating in the marketing and syndication efforts related thereto and (iii) participating in the preparation of rating agency presentations and meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and investors, in each case, with respect thereto, in each case, provided that the terms of such Permanent Financing are reasonably satisfactory to Pluto and Utah. Notwithstanding the foregoing, Pluto and Utah shall not be required to sign take any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had action under this Lease;Section 8.8(g) that would unreasonably interfere with their respective businesses or ongoing operations.
(h) The Trust Deed Notwithstanding anything to the contrary in this Section 8.8, (i) no action contemplated in this Section 8.8 shall be subject required if any such action shall: (A) require Pluto or any of its Subsidiaries (other than Spinco and its Subsidiaries) to all conditionsbe an issuer of the Financing or the Permanent Financing, covenants (B) require Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, or any of their respective Representatives, to provide (or to have provided on its behalf) any certificates, legal opinions or negative assurance letters (other than, in the case of Spinco and restrictions its Subsidiaries, certificates, opinions or letters delivered at the closing of this Lease the Financing); (C) cause any director, officer or employee of Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, to incur any personal liability; (D) require Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, to execute and deliver any pledge or security documents or certificates, documents or instruments relating to all rights the provision of Landlord hereunder;collateral in connection with the Financing or Permanent Financing other than those related to Spinco and its Subsidiaries that shall not become effective until after the Distribution; (E) without limiting clauses (B) and (D) above, require Pluto or any of its Subsidiaries, or Utah or any of its Subsidiaries, to execute and deliver any documentation related to the Financing or Permanent Financing other than (i) documentation executed and delivered by Spinco and its Subsidiaries and (ii) customary comfort letters executed and delivered by Utah’s accountants (and customary representation letters related thereto executed and delivered by Utah and its Subsidiaries); (F)
(1) jeopardize (in Pluto’s reasonable determination) any attorney-client privilege of Pluto or any of its Subsidiaries (in which case Pluto and such Subsidiaries shall use reasonable best efforts to take such action in a manner that would not jeopardize such attorney-client privilege) or (2) jeopardize (in Utah’s reasonable determination) any attorney-client privilege of Utah or any of its Subsidiaries (in which case Utah and such Subsidiaries shall use reasonable best efforts to take such action in a manner that would not jeopardize such attorney-client privilege); or (G) result in a material violation or breach of, or a default under, the Organizational Documents of Pluto or its Subsidiaries, or the Organizational Documents of Utah or its Subsidiaries, or any applicable Law.
(i) The Landlord will accept performance under All non-public or otherwise confidential information regarding the Spinco Business obtained by Utah or its Representatives pursuant to this Lease Section 8.8 or otherwise shall be kept confidential in accordance with the terms of the Confidentiality Agreement. Notwithstanding any other provision set forth herein or in any other agreement between Pluto and Utah (or their respective Affiliates), Pluto agrees that Utah may share information with respect to Spinco and the Spinco Business with the Spinco Lenders, and that Utah and such Spinco Lenders may share such information with potential financing sources in connection with any marketing efforts for the Financing; provided, however, that the recipients of such information and any other information contemplated to be provided by Utah or any Leasehold Mortgagee as though the same had been performed by Tenant;of its Subsidiaries pursuant to this Section 8.8, agree to customary confidentiality arrangements, including “click through” confidentiality agreements and confidentially provisions contained in customary bank books and offering memoranda.
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedingsAll non-public or otherwise confidential information regarding the businesses of Utah and its Subsidiaries obtained by Pluto, to proceed with foreclosure proceedings, Spinco or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination respective Representatives pursuant to this Lease) without Section 8.8 or otherwise shall be kept confidential in accordance with the prior written consent terms of each Leasehold Mortgagee;
the Confidentiality Agreement. Notwithstanding any other provision set forth herein or in any other agreement between Pluto or Spinco, on the one hand, and Utah, on the other hand (m) The Trust Deed shall provide thator their respective Affiliates), prior Utah agrees that Pluto and Spinco may share information with respect to the institution businesses of any proceedings to foreclose Utah and its Subsidiaries with the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commencedSpinco Lenders, and Landlord shall have the rightthat Pluto, but not the obligation, within sixty (60) days after receiving of Spinco and such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements Spinco Lenders may share such information with potential financing sources in connection with any Improvementsmarketing efforts for the Financing; provided, including but not limited to construction loanshowever, long term loans and refinancing permitted by that the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy recipients of such Trust Deed information and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof any other information contemplated to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Financing. Tenant may seek (a) Parent shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Improvements from time Financing on the terms and conditions described in or contemplated by the Commitment Letter (including any “flex” provisions) to time during the Term. For such purpose onlyextent required, Tenant shall have when taken together with cash or cash equivalents held by the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayedParent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to assign refinance in full all or part of Tenant’s interest amounts outstanding under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelythe Company Credit Agreement, the “Trust Deed”). Landlord’s written approval Company Receivables Financing Agreement and the Company Indentures and to pay cash in lieu of fractional shares in accordance with Section 2.2, including using reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) satisfy (or, if determined advisable by the Parent, obtain the waiver of) on or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond prior to the request Closing Date all conditions to funding contained in the Commitment Letter and such definitive agreements for the Financing to be entered into pursuant thereto, in each case, that are within twenty the control of Parent, (20iii) Business Daysnegotiate and enter into definitive agreements with respect to the Financing contemplated by the Commitment Letter on terms and conditions not materially less favorable to Parent, taken as a whole, than those described in the Commitment Letter (including any “flex” provisions contained therein) on or prior to the Closing Date, (iv) enforce its rights under the Commitment Letter and (v) in the event that all conditions to funding contained in the Commitment Letter have been satisfied or waived, cause the applicable Financing Sources providing the Financing contemplated by the Commitment Letter to fund on the Closing Date the portion of the Financing contemplated by the Commitment Letter required to refinance in full all amounts outstanding under the Company Credit Agreement, the request shall be deemed approvedCompany Receivables Financing Agreement and the Company Indentures and to pay cash in lieu of fractional shares in accordance with Section 2.2 (including by enforcing the Commitment Letter against any breaching Financing Source). In the event Tenant assigns all or any portion of Tenant’s Interest the Financing contemplated by the Commitment Letter becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Commitment Letter for any reason (other than as contemplated by the Commitment Letter, including as a result of entering into any Qualifying Bank Financing (as defined in the Commitment Letter) or issuing any debt securities) and such portion is necessary to secure refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing (A) Parent shall promptly notify the Company in writing and (B) Parent shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative financing for any such portion from alternative sources (the “Alternative Financing”) in an amount, when taken together with cash or cash equivalents held by the Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, sufficient to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and which (1) does not involve terms and conditions that, taken as a loan permitted under this Section 14.2whole, then are materially less beneficial to Parent than those contained in the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the NoteCommitment Letter, or otherwise become obligated thereunder;
(c2) No such lienwould not reasonably be expected to prevent, charge materially impede or encumbrance materially delay the consummation of the transactions contemplated by this Agreement. To the extent requested by the Company from time to time, Parent shall constitute keep the Company informed on a lien reasonably current basis of the status of its efforts to arrange the Financing. Without limiting the generality of the foregoing, Parent shall promptly notify the Company in writing (x) if there exists any material breach, material default, repudiation, cancellation or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease termination by any Leasehold Mortgagee as though party to the same had been performed by Tenant;
Commitment Letter (jor any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach, material default, repudiation, cancellation or termination) The time available to a Leasehold Mortgagee to initiate foreclosure proceedingsof which Parent obtains knowledge, to proceed with foreclosure proceedings, or to obtain possession (y) of the leasehold interest shall be deemed extended receipt by Parent or any of its Subsidiaries of any written notice or other written communication from any Financing Source party to the Commitment Letter asserting any actual material breach, material default, repudiation, cancellation or termination by any party to the Commitment Letter or (z) if for any reason Parent or any of its Subsidiaries believes in good faith that there is (or there is reasonably likely to be) a material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing with respect to the obligations to fund the Financing contemplated by the number Commitment Letter. None of days Parent nor any of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
its Subsidiaries shall (k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(mthe Company, such consent not to be unreasonably withheld, delayed or conditioned) The Trust Deed shall provide thatconsent or agree to any amendment, prior replacement, supplement or modification to, or any waiver of any provision under, the Commitment Letter or the definitive agreements relating to the institution Financing if such amendment, replacement, supplement, modification or waiver (1) decreases the aggregate amount of any proceedings the Financing to foreclose an amount that would be less than an amount that would be required, when taken together with cash or cash equivalents held by the Trust Deed or Parent and the Company on the Closing Date and the other sources of negotiations funds available to accept an assignment Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the foreclosure fees and expenses relating to the Merger and the Financing, (2) imposes new or additional conditions or otherwise expands, amends or modifies any of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal conditions to the full amount then owing under said Trust Deedreceipt of the Financing, including accrued interest(3) could reasonably be expected to prevent, reasonable attorneys’ fee materially impede or materially delay the consummation of the transactions contemplated by this Agreement, or (4) materially and adversely impacts the ability of Parent to enforce its rights against the other parties to the Commitment Letter; provided, however, that, for the holder avoidance of doubt, Parent may amend, replace, supplement and/or modify the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but similar entities as parties thereto who had not limited to construction loans, long term loans and refinancing permitted by executed the terms Commitment Letter as of the date of this Lease shall contain Agreement or increase the written agreement amount of commitments under the Commitment Letter. Upon any amendment, supplement or modification of the Leasehold Mortgagee that Landlord Commitment Letter, Parent shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of provide a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under Company (with only fee amounts and other economic terms, and the terms rates and amounts included in the “flex” provisions, redacted, none of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.redacted provisions would adversely affect the
Appears in 2 contracts
Sources: Merger Agreement (Fiserv Inc), Merger Agreement (First Data Corp)
Financing. Tenant may seek (a) Acquiror and Merger Sub shall take, or cause to obtain a loan to finance be taken, as promptly as practicable after the Improvements date hereof, all actions, and to refinance do, or cause to be done, all things necessary, proper or advisable (including enforcing its rights under the Improvements from time Subscription Agreements), on or prior to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayedClosing Date, to assign consummate the purchases contemplated by the Subscription Agreements on the terms and conditions described or contemplated therein, including using its reasonable efforts to (i) comply with its respective obligations under the Subscription Agreements, (w) maintain in effect the Subscription Agreements in accordance with the terms and conditions thereof, (x) satisfy on a timely basis all conditions and covenants applicable to Acquiror set forth in the applicable Subscription Agreements within its control, (y) consummate the PIPE Investment when required pursuant to this Agreement, and (z) enforce its rights under the Subscription Agreements to cause the Subscribers to pay to (or part as directed by) Acquiror the applicable purchase price under each Subscriber’s applicable Subscription Agreement in accordance with its terms. Acquiror shall give the Company prompt written notice upon (A) becoming aware of Tenant’s interest under this Lease, as security any breach or default by any party to any Institutional Lender of the Subscription Agreements or any termination (a “Leasehold Mortgagee”or purported termination) which has advanced such funds of any of the Subscription Agreements, (B) the receipt of any written notice or other written communication from any party to Tenant pursuant any Subscription Agreement with respect to a promissory note any actual, potential or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20C) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord if Acquiror does not respond expect to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns receive all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2the PIPE Investment Amount on the terms, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises manner or their reversionary interest in from the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended sources contemplated by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this LeaseSubscription Agreements. Acquiror shall not, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;the Company, amend, modify, supplement or waive (or permit any waiver of) any provision of, or terminate or abandon its plans with respect to, or provide consent to amend, modify, supplement, waive, assign or terminate any provision or remedy under, or any replacements of, any Subscription Agreement.
(mb) The Trust Deed shall provide that, prior to the institution of If all or any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu portion of the foreclosure PIPE Investment becomes unavailable, (i) Acquiror shall promptly notify the Company, (ii) Acquiror and the Company shall mutually cooperate in good faith and Acquiror and the Company shall promptly use its reasonable best efforts to promptly obtain the PIPE Investment or such portion of the Trust DeedPIPE Investment from alternative sources in an amount, when added to any portion of the holder or beneficiary thereof shall notify Landlord in writing PIPE Investment that such proceedings or negotiations are to be commencedis available, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust DeedPIPE Investment Amount (any alternative source(s) of financing, including accrued interest“Alternative PIPE Investment”) and (iii) in the event that Acquiror is able to obtain any Alternative PIPE Investment, subject to the prior written consent of the Company (in its sole discretion), Acquiror shall use its reasonable attorneys’ fee best efforts to enter into a new subscription agreement (each, an “Alternative Subscription Agreement”) that provides for the holder or beneficiary, subscription and applicable statutory costs purchase of Acquiror Common Stock at $10.00 per share and allowances if any foreclosure proceedings shall have commenced. All loan agreements containing terms and conditions not less favorable in connection with any Improvements, including but not limited to construction loans, long term loans the aggregate from the standpoint of Acquiror and refinancing permitted the Company than those in the Subscription Agreements entered into as of the date hereof (as determined by the terms Company (in its sole discretion)). In such event, the term “PIPE Investment” as used in this Agreement shall be deemed to include any Alternative PIPE Investment, the term “Subscription Agreements” as used in this Agreement shall be deemed to include any Alternative Subscription Agreement and the term “PIPE Acquiror” as used in this Agreement shall be deemed to include any Person that is subscribing for Acquiror Common Stock under any Alternative Subscription Agreement. For the avoidance of this Lease shall contain the written agreement doubt, if all or any portion of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant PIPE Investment or Alternative PIPE Investment becomes unavailable, in each case subject to the California Civil Code Section 2924;
(n) Tenant shall give Landlord prior written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction consent of the Improvements shall be available for restoration thereof Company (in its sole discretion) Acquiror may utilize deposits, proceeds or any other amounts from the Trust Account and, to the extent Tenant is obligated under acceptable to the terms of this Lease Company, any additional third party financing to restore the Improvements following such damage or destructionsatisfy its financing obligations hereunder.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Spring Valley Acquisition Corp.), Merger Agreement (Spring Valley Acquisition Corp.)
Financing. Tenant may seek (a) Buyer, Holdings and Merger Sub shall use their reasonable best efforts to (i) arrange for the Financing on the terms and conditions described in the Commitment Letters; (ii) enter into definitive agreements with respect to the Financing; (iii) satisfy all conditions applicable to Buyer, Holdings and Merger Sub in such definitive agreements that are within their control; and (iv) consummate the Financing no later than the earlier of (A) the last day of the Marketing Period and (B) the Final Date. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters for any reason, Buyer shall use its reasonable best efforts to obtain alternative financing from alternative sources, as promptly as practicable following the occurrence of such event, but in no event later than the earlier of (A) the last day of the Marketing Period and (B) the Final Date; provided that such obligation shall be limited to obtaining alternative financing on comparable or more favorable terms, in the aggregate, to Buyer than as contemplated by the Commitment Letters (as determined in the reasonable good-faith judgment of Buyer). Buyer shall promptly (but in any event within five (5) Business Days) provide the Company with the documentation evidencing the alternative sources of financing and shall give the Company prompt notice (but in any event within five (5) Business Days) of it (or any of the Equity Sponsors or IAAI) becoming aware of any material breach by any party to the Commitment Letters or any termination of the Commitment Letters. Buyer shall keep the Company informed on a loan reasonably current basis in reasonable detail of the status of its efforts to finance arrange for the Improvements Financing (or replacements thereof), including providing the Company with information about the equity rollover and refinancing of IAAI as the Company may reasonably request, and shall not permit any material amendment or modification to refinance be made to, or any waiver of any material provision or remedy under, the Improvements from time to time during Commitment Letters (or replacements thereof) without first consulting with the TermCompany. For such purpose only, Tenant shall have Without first obtaining the right, with LandlordCompany’s prior written approval, consent (which shall not be unreasonably withheld, conditioned or delayed), Buyer shall not directly or indirectly take any action that (x) would or would be reasonably expected to assign all result in the Financing not being available at or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond prior to the request within twenty earlier of (20A) Business Daysthe last day of the Marketing Period and (B) the Final Date, or (y) would have a Buyer Material Adverse Effect. For the request shall be deemed approved. In avoidance of doubt, in the event Tenant assigns (X) all or any portion of Tenant’s Interest to secure a loan permitted under the Debt Financing structured as high yield financing has not been consummated; (Y) all closing conditions contained in Section 7.1, Section 7.2 and Section 7.3 (other than the actual delivery of the certificates described therein and the actual receipt of the proceeds from the Debt Financing) have been satisfied; and (Z) the bridge facilities contemplated by the Debt Commitment Letters (or alternative bridge financing obtained in accordance with this Section 14.2Agreement) are available on the terms and conditions described in the Debt Commitment Letters (or replacements thereof), then Buyer, Holdings and Merger Sub shall cause the following shall apply:
proceeds of such bridge financing to be used to replace such high yield financing no later than the earlier of (aA) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;last day of the Marketing Period and (B) the Final Date.
(b) The Landlord Company shall and shall cause its Subsidiaries and their respective Representatives to provide to Buyer all reasonable cooperation in connection with the arrangement of the Financing as may be reasonably required by Buyer (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries; and provided, further, that none of the Company nor any of its Subsidiaries shall be required to pay any commitment or other fee or incur any other liability in connection with the Financing prior to the Effective Time) including, without limitation, (i) using reasonable best efforts to cause its officers and employees to be available, during normal working hours and upon reasonable notice, to meet with the Lenders or Equity Sponsors in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with rating agencies; (ii) using reasonable best efforts to assist with the preparation of disclosure materials customarily included in documents associated with this type of Financing and reasonably required in connection with the Financing; (iii) using reasonable best efforts to cause its independent accountants, consistent with their customary practice, to provide reasonable assistance and cooperation to Buyer, including, without limitation, accounting due diligence sessions, and providing consent to Buyer to use their audit reports relating to the Company and any “comfort letters,” in each case on customary terms and consistent with their customary practice in connection with the Financing; (iv) executing and delivering definitive financing documents, including pledge and security documents, subsidiary guarantees or other certificates, legal opinions of the Company’s counsel regarding customary corporate matters or documents as may be reasonably requested by Buyer and reasonably required in connection with the Financing (including certificates of the chief financial officer of the Company or any of its Subsidiaries with respect to solvency matters) and otherwise reasonably facilitating the pledging of collateral (including, without limitation, assisting Buyer in the preparation and negotiation of mortgages, granting such mortgages, assisting in obtaining title policies, resolving exceptions on such title policies which are objected to by the lenders of the Debt Financing); provided that no obligation of the Company or any of its Subsidiaries under any such agreement, document or pledge shall be effective until the Effective Time; (v) providing access to people and information as set forth in Section 6.3; (vi) using reasonable best efforts to obtain surveys and title insurance reasonably requested by Buyer and required in connection with the Financing; (vii) using reasonable best efforts to furnish to Buyer and its financing sources with the Required Financial Information and all other financial information regarding the Company reasonably requested by Buyer and required in connection with the Financing, including all financial statements and data of the type required by Regulation S-X and Regulation S-K, including audits thereof to the extent so required, and the other accounting rules and regulations of the SEC, that is of the type and form customarily included in a registration statement on Form S-1 (or any applicable successor form) under the Securities Act for a public offering to consummate the offering(s) of debt securities contemplated by the Debt Commitment Letters; (viii) taking all actions reasonably requested by Buyer and otherwise required in connection with the Financing to (A) permit the Lenders to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, consistent with customary practice in connection with the Financing; provided that no right of any Lender, nor obligation of the Company or any of its Subsidiaries, thereunder shall be effective until the Effective Time; (ix) entering into one or more credit or other agreements on terms reasonably satisfactory to Buyer as required in connection with the Financing immediately prior to the Effective Time; provided that the Company shall not be required to sign enter into any Trust Deed purchase agreement for any high-yield debt financing; provided, further, that no obligation of the Company or any of its Subsidiaries under such credit or other agreement shall be effective until the NoteEffective Time; and (x) taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Buyer and consistent with customary practice to permit the consummation of the Financing and the direct borrowing or incurrence of all of the proceeds of the Financing, including any high yield debt financing, by the Surviving Corporation immediately following the Effective Time. The Company and its counsel shall be given reasonable opportunity to review and comment upon any private placement memoranda or similar documents, or otherwise become obligated thereunder;any materials for rating agencies, that include information about the Company or any of its Subsidiaries prepared in connection with the Financing, and Buyer/Holdings/Merger Sub shall include in such memoranda, documents or other materials, comments reasonably proposed by the Company. If this Agreement is terminated for any reason, Buyer shall use reasonable best efforts to cause the voiding, termination and/or destruction of all documents executed by the Company or any of its Subsidiaries in connection with their cooperation in the Financing. For the avoidance of doubt, the Company’s obligation to reasonably cooperate with Buyer in connection with the arrangement of the Financing shall apply to the Financing solely with respect to the Merger and the other transactions contemplated thereby, and neither the Company or any of its Subsidiaries, nor any of their respective officers or directors shall be required to execute any certificate, representation letter or other certification, or to deliver, or cause to be delivered, any legal opinion that is not customary or would be unreasonable for the offering(s) of debt securities contemplated by the Debt Commitment Letters.
(c) No such lien, charge All non-public information or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title otherwise Proprietary Information (as defined in the Premises Confidentiality Agreement) regarding the Company obtained by any of the Buyer Parities or their reversionary interest its Representatives pursuant to Section 6.13(b) shall be kept confidential in accordance with the Improvements;Confidentiality Agreement.
(d) Any interest Notwithstanding anything in this Agreement to the Premises which contrary, each of the Trust Deed establishes in a trustee, Debt Commitment Letters and any lien which it creates, shall expire on or before the Equity Commitment Letters may be superseded at the option of Buyer after the date of expiration of this Lease;
Agreement but prior to the Effective Time by instruments (ethe “New Commitment Letters”) The Trust Deed imposes no financial obligations on which replace the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements existing Debt Commitment Letters or the Premises;
(g) Except as otherwise existing Equity Commitment Letters and/or contemplate co-investment by or financing from one or more other or additional parties; provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
that (i) The Landlord will accept performance under this Lease by the New Commitment Letters do not decrease the aggregate Equity Financing as set forth in the Equity Commitment Letters delivered on the date hereof, (ii) any Leasehold Mortgagee as though new or substitute Equity Sponsors enter into guarantees with the Company on substantially the same had been performed by Tenant;
terms as the Guarantee, (jiii) The time available to a Leasehold Mortgagee to initiate foreclosure proceedingsthe New Commitment Letters provide for bridge financing on comparable or more favorable terms, in the aggregate, to proceed with foreclosure proceedingsBuyer than the terms contemplated by the Debt Commitment Letters delivered on the date hereof, (iv) Buyer in good faith believes that the financing contemplated by the New Commitment Letters would not or would not reasonably be expected to obtain possession result in the Financing not being available at or prior to the earlier of (A) the last day of the leasehold interest Marketing Period and (B) the Final Date, and (v) Buyer provides written notice to the Company of such an occurrence concurrently with notice of the same to the other Equity Sponsors or Lenders, as applicable. In such event, the terms “Commitment Letters,” “Equity Commitment Letters” and “Debt Commitment Letters” as used herein shall be deemed extended by to include the number New Commitment Letters to the extent then in effect, and the term “Equity Sponsors” as used herein shall be deemed to include any new or substitute equity sponsors; provided, further, that in the event any portion of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leasethe Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters delivered on the date hereof, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent second sentence of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commencedSection 6.13(a), and Landlord not this Section 6.13(d) shall have the right, but not the obligation, within sixty (60) days after receiving of such notice govern with respect to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement any replacement financing to be obtained after any portion of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionFinancing becomes unavailable as described therein.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Adesa California, LLC), Merger Agreement (Adesa Inc)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, 16.1 Landlord agrees that Tenant shall have the rightabsolute right during the Term to place one (1) or more deeds of trust, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned mortgages or delayed, to assign all or part of Tenant’s interest under this Lease, as similar security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns interests on all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title 's leasehold interest in the Premises or their and/or any improvements therein; provided, however, and except as provided below Tenant shall have no right whatsoever to encumber Landlord's fee title and reversionary interest in the Improvements;Premises and such security instrument shall encumber only Tenant's rights under this Lease and the leasehold estate created hereby.
(d) Any 16.2 Notwithstanding any other provision of this Lease to the contrary, in the event Tenant or any sublessee of Tenant shall obtain a loan for construction of improvements on the Premises or any other loan secured by Tenant's leasehold interest in the Premises which the Trust Deed establishes in a trusteePremises, and any lien which it createsLandlord, upon request by Tenant, shall expire on or before subordinate this Lease and Landlord's interest therein to such construction loan and shall timely execute any and all documents reasonably requested by the date of expiration of this Lease;
(e) The Trust Deed imposes construction lender to evidence such subordination, however in no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed event shall neither Landlord be required to subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s its fee or leasehold title (respectively) or reversionary interest in the Improvements or Premises to such construction loan.
16.3 In the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue event of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions a termination of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu expiration of the foreclosure of the Trust DeedTerm, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commencedLandlord, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days prior to the termination of the Lease, shall serve upon any institutional lender which holds a first priority mortgage encumbering Tenant's leasehold interest in the Premises (a "Lender") written notice of such termination, together with a statement of any default and all sums which would be due under the Lease as of the date of notice (but for the termination of the Lease) and a description of any and all events of default. Within thirty (30) days from its receipt of the notice of termination, Lender shall have the option to obtain a new lease for the Premises by Tenant on any providing Landlord with written notice of its desire to exercise such loan option. Upon Landlord's receipt of such notice, Landlord shall enter into a new lease for the Premises with Lender which shall:
(i) Commence as of the date of the termination of the Lease, and shall be given effective for the opportunity to correct remainder of the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by TenantTerm, and shall accompany such notice with a true copy contain all of such Trust Deed the terms and conditions that were set forth in the Note secured therebyLease, including, but not limited to, those pertaining to rental payments; and
(oii) All insurance proceeds arising Require the tenant under the new lease to cure any monetary events of default under the terminated Lease. Landlord shall promptly take all actions necessary to evict Tenant or any other unauthorized party from damage or destruction the Premises and, subject to the rights of any sublessee, shall provide the tenant under the new lease with the sole and exclusive possession of the Improvements Premises upon execution of the new lease.
16.4 In the event of a termination of the Lease prior to the expiration of the Term and either (i) there exists no Lender, or (ii) the Lender does not elect to exercise its option in Section 16.3 above, then Landlord, (x) within thirty (30) days prior to the termination of the Lease if there is no Lender, or (y) within five (5) days subsequent to the expiration or waiver of Lender's option as described in Section 16.3 above if there is a Lender, shall serve upon any sublessee written notice of such termination, together with a statement of any and all sums which would be due under the Lease as of the date of notice (but for the termination of the Lease) and a description of any and all events of default. Within thirty (30) days from its receipt of notice of termination, the sublessee shall have the option to obtain a new lease for the Premises by providing with written notice of its desire to exercise such option. Upon Landlord's receipt of such notice, Landlord shall enter into a new lease for the Premises with the sublessee which shall (a) commence as of the day of the termination of the Lease and shall be available effective for restoration thereof the remainder of the term of the sublease and contain all of the terms and conditions that were set forth in a sublease agreement between Tenant and such sublessee, including, but not limited to, those pertaining to rental payments and options to renew the extent Tenant is obligated term of the sublease, and (b) require the subtenant under the terms new lease to cure any monetary events of default under the terminated Lease. Landlord shall promptly take all take action necessary to evict Tenant or any other unauthorized party from the Premises, and shall provide sublessee with the sole and exclusive possession of the Premises upon execution of the new lease.
16.5 For the benefit of any Lender, Landlord agrees, subject nevertheless to all of the terms, covenants, agreements, provisions, conditions and limitations contained in this Lease, not to accept a voluntary surrender of this Lease at any time during which Lender shall hold an outstanding mortgage, deed to restore the Improvements following such damage secure debt or destructionother security interest.
(p) No loan may be in 16.6 Landlord and Tenant hereby acknowledge and agree that any Lender and any sublessee is an amount which exceeds seventy-five percent (75%) intended third party beneficiary of the fair market value of the Improvements at the time the loan is entered intothis Section 16.
Appears in 2 contracts
Sources: Net Ground Lease (Medical Properties Trust Inc), Net Ground Lease (Medical Properties Trust Inc)
Financing. Tenant may seek (a) During the period commencing on the date hereof and terminating on the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII, each of Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Financing on the terms and conditions described in or contemplated by the Commitment Letters (including complying with any request requiring the exercise of so-called “market flex” provisions in the Fee Letter in connection with the Debt Financing), including using reasonable best efforts to:
(i) maintain in full force and effect the Commitment Letters (subject to Parent’s right to replace, restate, supplement, modify, assign, substitute or amend the Commitment Letters in accordance herewith);
(ii) negotiate and execute definitive agreements with respect to the Debt Financing on the terms contained in the Debt Commitment Letter (including any “market flex” provisions applicable thereto), or on such other terms that, taken as a whole, (i) would not reduce the aggregate amount of the Financing available to be funded at the Closing below the amount required to fund the Financing Uses (taking into account any increase in any other Financing and other available sources) and (ii) are no less favorable in the aggregate to Parent and Merger Sub than the terms set forth in the Debt Commitment Letter as in effect on the date of this Agreement (as determined by Parent in its reasonable judgment) (including any “market flex” provisions applicable thereto), in each case, which terms shall not impose, nor permit the imposition of, any new conditions (or the modification or expansion of any existing conditions) or the limitation, amendment or waiver of any applicable remedies available with respect to the Financing (such definitive agreement, the “Definitive Financing Agreements”);
(iii) satisfy on a timely basis (or obtain the waiver of) all conditions precedent in the Commitment Letters and such Definitive Financing Agreements that are to be satisfied by, and within the control of, Parent and/or Merger Sub, including (without limitation) the satisfaction of conditions relating to (A) the preparation and delivery of pro forma financial statements, (B) the payment of fees and expenses, (C) the execution and/or delivery of documents and instruments in connection with the Debt Financing, and (D) the delivery of any applicable beneficial ownership certification and information under applicable “know your customer” and anti-money laundering rules and regulations, in each case, relating to Parent, Merger Sub and its Affiliates; and
(iv) upon the reasonable request of the Company, confirm with the Debt Financing Sources their intent and ability to perform, and the availability of the Debt Financing, under the Debt Commitment Letter, subject in each case to satisfaction or waiver of the Financing Conditions (including consummation of the Equity Financing), and that neither Parent nor the Debt Financing Sources are aware of any event or condition that could reasonably be expected to result in the failure of a Financing Condition; and
(v) in the event that all conditions in Exhibit C to the Debt Commitment Letter (other than conditions that by their nature are to be satisfied at the Closing) have been satisfied (other than those conditions that would be expected to be satisfied substantially concurrently with the Closing), consummate or cause to be consummated the Financing at or prior to the Closing. Parent shall, upon the Company’s reasonable written request, provide the Company with copies of any Definitive Financing Agreements and such other information and documentation regarding the Debt Financing as shall be reasonably necessary to allow the Company to monitor the progress of such financing activities. Parent and Merger Sub shall not, and Parent shall cause its other Subsidiaries not to, take any action (including by incurring any indebtedness other than the Debt Financing or Alternative Financing in accordance with Section 6.10(b)) that would reasonably be expected to cause the Debt Financing (or Alternative Financing in accordance with Section 6.10(b)) not to be available to fund the Financing Uses on the Closing Date. Upon the reasonable written request of the Company, Parent shall promptly, and in any event within two (2) Business Days, inform the Company in reasonable detail of any material developments concerning the status of its and Merger Sub’s efforts to arrange the Debt Financing and provide any information reasonably requested by the Company relating thereto. During the period commencing on the date of this Agreement and termination on the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII, neither Parent nor Merger Sub (nor any of their Affiliates) will take any action in connection with the Debt Financing that would require the Company to make any filings with the SEC or include information in such filings that the Company would not otherwise reasonably expect to have included in its filings with the SEC at such time.
(b) In the event that all conditions in Exhibit C to the Debt Commitment Letter (other than conditions that by their nature are to be satisfied at the Closing) have been satisfied (other than those conditions that would be expected to be satisfied substantially concurrently with the Closing) and the Debt Financing shall not have been funded at or prior to the Closing, Parent shall use commercially reasonable efforts to cause the Debt Financing and the Person committing to provide the Debt Financing to comply with its obligations under the Debt Commitment Letter and the Definitive Financing Agreements to which they are a party and to cause such Person to fund such Debt Financing.
(c) In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “market flex” provisions applicable thereto) contemplated in the Debt Commitment Letter prior to the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII (other than by reason of breach of this Agreement by the Company), Parent shall promptly upon becoming aware thereof notify the Company, and each of Parent and Merger Sub shall use their respective reasonable best efforts to take, or cause to be taken, as promptly as practicable after the date hereof, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain a loan alternative financing from the same or alternative sources in an amount sufficient, when added to finance the Improvements portion of the Financing that is and remains available to Parent, to consummate the transactions contemplated by this Agreement and to refinance pay all Financing Uses at the Improvements from time Closing (“Alternative Financing”) and provide the Company with a copy of the new financing commitment that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”) promptly upon the effectiveness thereof, which Alternative Financing Commitment Letter shall not be required to time during include terms, fees, interest rates and other costs and conditions (including any “market flex” provisions applicable thereto) that, taken as a whole, are materially less beneficial to Parent or Merger Sub than those terms, fees, interest rates and other costs and conditions contemplated in the Term. For such purpose onlyDebt Commitment Letter (including any “market flex” provisions applicable thereto); provided, Tenant that Parent and Merger Sub shall have no obligation to seek the rightcash equity from any source other than those counter parties to the Equity Commitment Letter, or in any amount with Landlordrespect to an investor in excess of such investor’s commitment. As applicable, references in this Agreement (other than with respect to representations in this Agreement made by Parent and Merger Sub that speak as of the date hereof) (i) to Financing or Debt Financing, as applicable, shall include Alternative Financing, as applicable, (ii) to Commitment Letter or Debt Commitment Letter, as applicable, shall include the Alternative Financing Commitment Letter, as applicable and (iii) to Definitive Financing Agreements shall include the definitive documentation relating to any such Alternative Financing. Parent shall promptly deliver to the Company true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing necessary to fund the Financing Uses; provided, that any specific fee amounts and any specific “market flex” provisions applicable thereto set forth therein may be redacted so long as such redacted terms do not impose, or permit the imposition of, new or additional conditions precedent or the expansion of any existing conditions precedent to the funding of the Debt Financing.
(d) Without limiting the generality of Section 6.15(c), Parent shall promptly (and, in any event, within two (2) Business Days) notify the Company in writing of the occurrence of any of the following: (i) termination, withdrawal, repudiation, rescission, cancellation or expiration of any Commitment Letter of which Parent becomes aware, (ii) any breach or default under any Commitment Letter by any party to such Commitment Letter of which Parent becomes aware, and (iii) receipt by any of Parent, Merger Sub or any of its Affiliates or Representatives of any written notice or other written communication from any Debt Financing Source with respect to any (A) actual or threatened (in writing) breach, default, termination, withdrawal, repudiation, rescission or cancellation by any party to any Commitment Letter or (B) material dispute or disagreement between or among Parent, on the one hand, and any Debt Financing Source, on the other hand, in each case if as a result thereof it is reasonably likely that Parent will not be able to obtain all or any portion of the Financing on the terms and conditions contemplated by the Commitment Letters. As soon as reasonably practicable, but in any event within two (2) Business Days after any such request, Parent shall provide to the Company and its Representatives any information reasonably requested by the Company relating to any of the circumstances referred to in this Section 6.15(c).
(e) During the period commencing on the date of this Agreement and terminating on the earlier to occur of the Closing and the termination of this Agreement pursuant to Article VIII, Parent and Merger Sub shall not without the prior written approval, which shall consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), permit, consent to assign all or part agree to (i) any amendment, restatement, replacement, supplement, termination, reduction, cancellation or other modification or waiver of Tenant’s interest under this Leaseany condition, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed provision or mortgage (collectivelyremedy under, the “Trust Deed”Equity Commitment Letter (other than to increase the amount of Equity Financing available thereunder). Landlord’s written approval , (ii) any amendment, restatement, replacement, supplement, termination, cancellation or denial shall be provided to Tenant within twenty other modification or waiver of any condition, or provision or remedy under, the Debt Commitment Letter, if such amendment, restatement, supplement, termination, cancellation, modification or waiver would (20A) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond impose new or additional conditions precedent to the request within twenty (20) Business Daysfunding of the Debt Financing or would otherwise change, amend, modify or expand any of the request shall be deemed approved. In conditions precedent to the event Tenant assigns all or funding of the Debt Financing, in any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2such case, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title from those set forth in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire Debt Commitment Letter on or before the date of expiration this Agreement in such a manner that could be reasonably expected to materially impair, materially delay or prevent the Closing, (B) reduce the aggregate amount of the Debt Financing below an amount sufficient to fund the Financing Uses on the Closing (taking into account any increase in any other Financing and other available sources) or (C) otherwise materially and adversely affect the ability of the Parent or Merger Sub to enforce their rights under the Commitment Letters or to consummate the transactions contemplated by this Agreement; provided however, for the avoidance of doubt, Parent and Merger Sub may (x) amend, supplement and/or modify the Debt Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Commitment Letter as of the date hereof and (y) correct non-substantive typographical errors. Parent shall furnish to the Company a copy of any amendment, restatement, replacement, supplement, modification, waiver or consent of or relating to the Debt Commitment Letter promptly upon execution thereof. For purposes of this Lease;
Agreement (e) The Trust Deed imposes no financial obligations on other than with respect to representations in this Agreement made by Parent and Merger Sub that speak as of the Landlorddate hereof), contingent references to the “Debt Commitment Letter” shall include such document as permitted or otherwise;required by this Section 6.15 to be amended, restated, replaced, supplemented or otherwise modified or waived, in each case from and after the date of such amendment, restatement, replacement, supplement or other modification or waiver.
(f) The Trust Deed shall Notwithstanding anything in this Section 6.15 to the contrary, each of Parent and Merger Sub acknowledges and agrees that neither subordinate the receipt by Parent or Merger Sub nor affect the Landlord’s right availability to convey, mortgage, encumber Parent or otherwise hypothecate in Merger Sub of the Financing or any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed other financing shall be subject a condition to all conditions, covenants and restrictions the obligations of this Lease and Parent or Merger Sub to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by consummate any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructiontransactions contemplated hereby.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (American Renal Associates Holdings, Inc.), Merger Agreement (American Renal Associates Holdings, Inc.)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Subject to the terms and conditions of this Agreement with (including Section 4.13), Investor shall use its reasonable best efforts to arrange for the Leasehold Mortgagee;
Company to obtain the proceeds of the Debt Financing on the terms and conditions (bincluding the flex provisions) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title described in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, Debt Financing Commitments and any lien which it createsrelated Fee Letter and Engagement Letter, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right including using its reasonable best efforts to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance maintain in effect the Debt Financing Commitments in accordance with the terms and subject to the conditions thereof, (ii) assist in the satisfaction on a timely basis of all conditions applicable to the Company (as assignee of Investor’s rights and obligations under this Lease the Debt Financing Commitments) in obtaining the Debt Financing at the Closing set forth therein (including consummating the Equity Financing on the terms set forth in the Equity Financing Commitment at or prior to Closing), and (iii) negotiate definitive agreements with respect to the Debt Financing on the terms and conditions (including the flex provisions) contemplated by the Debt Financing Commitments and related Fee Letter (provided that Investor shall provide copies thereof to Seller on a current basis and consider in good faith any Leasehold Mortgagee as though changes or comments thereto reasonably proposed by Seller and otherwise keep Seller reasonably informed on a current basis of the same had been performed by Tenant;
(j) The time available status of its efforts to a Leasehold Mortgagee arrange the Debt Financing and afford Seller and the Company the opportunity to initiate foreclosure proceedingsattend and participate in any scheduled meetings or negotiations relating to the Debt Financing). Investor shall not, to proceed and shall not agree with foreclosure proceedingsGuarantor to, enter into any amendment, supplement or other modification of, or to obtain possession waive any of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their its rights under this Leaseunder, the Leasehold Mortgagee who would be senior Equity Financing Commitment. Investor may (i) amend, replace or modify the Debt Financing Commitments and any related Fee Letter and Engagement Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or (ii) otherwise amend, replace or modify, or consent to any waiver of any provision or remedy under, the Debt Financing Commitments, other than any amendment, replacement, modification, consent or waiver set forth in priority if there were a foreclosure Schedule 4.12, each of which shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without require the prior written consent of Seller, which, upon request, shall be promptly given or denied. For the avoidance of doubt, nothing contained herein shall prevent Investor from reallocating the Debt Financing among the ABL Facility (as defined in the Debt Financing Commitment) and the Secured Interim Facility (as defined in the Debt Financing Commitment), in each Leasehold Mortgagee;case in accordance with the terms of the Debt Financing Commitment, or reducing the total amount of funds available under the Debt Financing, provided that in either case the representations and warranties set forth in the last sentence of Section 3.6 remain true and correct. Investor shall obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to closing in Section 6.2 (other than those conditions that by their nature will not be satisfied until the Closing and subject to and in accordance with the terms of the Equity Financing Commitment). Subject to the terms and conditions of this Agreement (including Section 4.13), in the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitments, Investor shall promptly notify Seller and shall use its reasonable best efforts to arrange for alternative financing from alternative sources (1) in an amount such that the aggregate funds that would be available to the Company at the Closing will be sufficient to pay all amounts contemplated by Section 1.3(b) of this Agreement to be paid by it and to perform its obligations hereunder, (2) with conditions to closing and funding of which are not, when taken as a whole, more onerous than those in the Debt Financing Commitments, and (3) which shall not (absent the prior written consent of Seller) include terms that would require Seller’s consent pursuant to Schedule 4.12. Investor shall promptly (and on a current basis) deliver to Seller true and complete copies of all drafts of any alternative financing commitments (and consider in good faith any changes or comments thereto reasonably proposed by Seller) and all final agreements pursuant to which any such alternative source shall have committed to provide Investor with any portion of the Debt Financing. For purposes of this Section 4.12, Section 3.6 and Section 4.13, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted by this Section 4.12 to be amended, modified or replaced and references to “Debt Financing Commitments”, “Fee Letter” and “Engagement Letter” shall include such documents as permitted by this Section 4.12 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.
(mb) The Trust Deed Nothing contained in this Agreement or otherwise shall provide thatrequire, prior and in no event shall the reasonable best efforts of Investor be deemed or construed to the institution of require, Investor to bring any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu enforcement action against any source of the foreclosure Financing to enforce its rights under the Financing Commitments, except that (i) Investor shall enforce, including by bringing suit for specific performance, the Equity Financing Commitment solely if Seller seeks and is granted a decree of specific performance of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are obligations pursuant to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease Agreement to cause the Equity Financing to be funded to fund the Investment and to consummate the Investment after all conditions to the granting therefor set forth in Section 10.3(b) have been satisfied and (ii) following a written request by Seller, Investor shall contain use its reasonable best efforts to enforce (including by litigation) its rights under the written agreement Debt Financing Commitments to cause the Financing Sources thereunder to, subject to the terms and conditions of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed Debt Financing Commitments and the Note secured thereby; and
(o) All insurance proceeds arising from damage satisfaction or destruction waiver of the Improvements shall be available for restoration thereof to conditions in ARTICLE VI hereof, fund the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) applicable portion of the fair market value of the Improvements Debt Financing at the time the loan is entered intoClosing.
Appears in 2 contracts
Sources: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Financing. Tenant may seek (a) NASDAQ OMX and ICE shall each use its respective reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Improvements NASDAQ OMX Financing on the terms and conditions described in the NASDAQ OMX Commitment Letter and the ICE Financing on the terms and conditions described in the ICE Commitment Letter, as applicable, including using reasonable best efforts to (i) maintain in effect the NASDAQ OMX Commitment Letter and the ICE Commitment Letter, as applicable, (ii) negotiate definitive agreements with respect thereto on the respective terms and conditions contemplated by the NASDAQ OMX Commitment Letter and the ICE Commitment Letter, as applicable, and execute and deliver to NYSE Euronext a copy thereof as promptly as practicable after such execution, and (iii) satisfy on a timely basis all conditions applicable to such Party in the NASDAQ OMX Commitment Letter or ICE Commitment Letter, as applicable, that are within such Party’s control and comply with its obligations thereunder. In the event that all conditions to the Commitment Letter have been satisfied or, upon funding will be satisfied, NASDAQ OMX, ICE and Merger Sub shall use their reasonable best efforts to cause the lenders and the other Persons providing the NASDAQ OMX Financing and the ICE Financing, as applicable, to fund on the Closing Date the NASDAQ OMX Financing and the ICE Financing required to consummate the Merger and the other transactions contemplated by this Agreement. NASDAQ OMX and ICE shall each have the right from time to time during the Term. For such purpose onlyto amend, Tenant shall have the rightreplace, with Landlord’s prior written approvalsupplement or otherwise modify, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part waive any of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyits rights under, the “Trust Deed”). Landlord’s written approval NASDAQ OMX Commitment Letter or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns ICE Commitment Letter and/or substitute other debt or equity financing for all or any portion of Tenant’s Interest the NASDAQ OMX Financing or the ICE Financing from the same and/or alternative financing sources; provided that any such amendment, replacement, supplement or other modification to secure a loan permitted under or waiver of any provision of the Commitment Letter that amends either the NASDAQ OMX Financing or the ICE Financing and/or substitution of all or any portion of the NASDAQ OMX Financing or ICE Financing shall not prevent or materially impede or delay the consummation of the Merger and the other transactions contemplated by this Section 14.2Agreement. If any portion of the NASDAQ OMX Financing or ICE Financing becomes unavailable on the terms and conditions contemplated in the NASDAQ OMX Commitment Letter or the ICE Commitment Letter and such portion is reasonably required to fund the Merger Consideration, then the following NASDAQ OMX or ICE, as applicable, shall apply:
(a) Landlord will enter into a Lender Recognition Agreement use its reasonable best efforts to arrange and obtain alternative financing from alternative financial institutions in an amount sufficient, when taken together with the Leasehold Mortgagee;portion of the NASDAQ OMX Financing or ICE Financing that is available and all other funds available to NASDAQ OMX or ICE, as applicable, to consummate the transactions contemplated by this Agreement upon conditions not materially less favorable, in the aggregate, to NASDAQ OMX or ICE, as applicable, than those in the NASDAQ OMX Commitment Letter or the ICE Commitment Letter as promptly as practicable following the occurrence of such event. NASDAQ OMX or ICE, as applicable, shall give NYSE Euronext prompt oral and written notice (but in any event not later than two (2) Business Days after the occurrence) of any material breach by any party to either the NASDAQ OMX Commitment Letter or the ICE Commitment Letter, as applicable, or of any condition not likely to be satisfied, in each case, of which NASDAQ OMX or ICE becomes aware, or any termination of the NASDAQ OMX Commitment Letter or ICE Commitment Letter. NASDAQ OMX and ICE shall each keep NYSE Euronext informed on a reasonably current basis of the status of its efforts to arrange the NASDAQ OMX Financing and ICE Financing, as applicable.
(b) The Landlord NYSE Euronext shall provide, and shall cause its Subsidiaries, and shall use its reasonable best efforts to cause each of its and their respective Representatives to provide, all cooperation reasonably requested by NASDAQ OMX or ICE in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of NYSE Euronext and its Subsidiaries), including (i) as promptly as practicable, providing to NASDAQ OMX and ICE and the lenders and other financial institutions and investors that are or may become parties to the NASDAQ OMX Financing or ICE Financing and to any underwriters, initial purchasers or placement agents in connection with the NASDAQ OMX Financing or ICE Financing (the “Financing Parties”) all financial and all other information relating to NYSE Euronext and its Subsidiaries that is necessary, advisable or customary for such financings or is reasonably requested by NASDAQ OMX or ICE (including any information reasonably deemed necessary by their respective Financing Parties) to assist in the preparation of customary offering or information documents to be used for the syndication, marketing and completion of the NASDAQ OMX Financing and ICE Financing as contemplated, respectively, by the NASDAQ OMX Commitment Letter and ICE Commitment Letter, including (w) information regarding the business, operations, financial projections and prospects of NYSE Euronext and its Subsidiaries and evaluations by NYSE Euronext and its advisors relating to the transactions contemplated by this Agreement, (x) information described in clause (b)(ix) below, (y) other information reasonably necessary, advisable or customary for the preparation of pro forma financial statements of the type required by Regulation S-K and S-X, and (z) monthly balance sheets and income statements internally prepared in accordance with past practice (the information described in this clause, collectively, the “Required Information”), (ii) making senior management of NYSE Euronext available for, and to participate in, meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing, presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies), (iii) assisting in the preparation of (A) any offering documents, bank information memoranda, prospectuses and similar documents that are customary, advisable or necessary for the NASDAQ OMX Financing and ICE Financing, and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts for the NASDAQ OMX Financing and ICE Financing (including consenting to the use of NYSE Euronext’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage NYSE Euronext or its Subsidiaries or the reputation or goodwill of NYSE Euronext or any of its Subsidiaries), (v) executing and delivering, and causing its Subsidiaries to execute and deliver, necessary, customary or advisable certificates (including a certificate of the principal financial officer of NYSE Euronext with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), legal opinions or other documents and instruments relating to collateral, guarantees and other matters ancillary to the NASDAQ OMX Financing and ICE Financing as may be reasonably requested by NASDAQ OMX or ICE, as applicable, as necessary, customary or advisable in connection with the NASDAQ OMX Financing and ICE Financing, (vi) assisting in (A) the preparation of and entering into one or more credit agreements, security agreements, guaranty agreements, currency or interest hedging agreements, or other agreements or (B) the amendment of any of NYSE Euronext’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to NASDAQ OMX and, if applicable, ICE, and that are reasonably requested by NASDAQ OMX and, if applicable, ICE, in connection with the NASDAQ OMX Financing or ICE Financing; provided, that no obligation of NYSE Euronext or any of its Subsidiaries under any such agreements or amendments shall be effective until the Effective Time, (vii) using its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, (viii) providing authorization letters to the Financing Parties authorizing the distribution of information to prospective lenders and containing a representation to the Financing Parties that the public versions of such documents, if any, do not include material non-public information about NYSE Euronext or its Affiliates or securities, (ix) providing audited consolidated financial statements of NYSE Euronext (prepared on a carve-out basis after giving effect to the Internal Reorganization and ICE’s ownership of ICE Newco following the Effective Time) for the 2008, 2009 and 2010 fiscal years and for any subsequent fiscal year ended at least 90 days prior to the Closing Date, and unaudited consolidated financial statements of NYSE Euronext (prepared on a carve-out basis after giving effect to the Internal Reorganization and ICE’s ownership of ICE Newco following the Effective Time) for any interim quarterly or other period or periods of NYSE Euronext ended after the date of the most recent audited financial statements and at least 30 days prior to the Closing Date, (x) using its reasonable best efforts to ensure that the Financing Parties benefit materially from the existing lending and banking relationships of NYSE Euronext and its Subsidiaries, and (xi) cooperating reasonably with the Financing Parties’ due diligence, to the extent not unreasonably interfering with the business of NYSE Euronext; provided, that until the Effective Time occurs, neither NYSE Euronext nor any of its Subsidiaries shall (x) be required to sign pay any Trust Deed commitment or other similar fee, (y) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to the Note, NASDAQ OMX Financing or otherwise become obligated thereunder;
ICE Financing (c) No such lien, charge or encumbrance shall constitute a lien alternative financing that NASDAQ OMX or encumbrance upon ICE may raise in connection with the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of transactions contemplated by this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectivelyAgreement) or reversionary interest (z) be required to incur any other liability in connection with the Improvements NASDAQ OMX Financing or ICE Financing (or any alternative financing that NASDAQ OMX or ICE may raise in connection with the Premises;
transactions contemplated by this Agreement) unless reimbursed or reasonably satisfactorily indemnified by NASDAQ OMX or ICE, as applicable. NASDAQ OMX and ICE (g1) Except as otherwise provided hereinshall promptly, no Leasehold Mortgagee or anyone claiming byupon written request by NYSE Euronext, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
reimburse NYSE Euronext for all reasonable and documented out-of-pocket costs (h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder fees) incurred by NYSE Euronext, any of its Subsidiaries or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements their respective Representatives in connection with the cooperation of NYSE Euronext and its Subsidiaries contemplated by this Section 4.12, (2) each acknowledge and agree that NYSE Euronext, its Subsidiaries and their respective Representatives shall not have any Improvementsresponsibility for, including but or incur any liability to any Person under, either the NASDAQ OMX Financing, the ICE Financing or any alternative financing that NASDAQ OMX or ICE may raise in connection with the transactions contemplated by this Agreement and (3) shall severally and not limited to construction loansjointly indemnify and hold harmless NYSE Euronext, long term loans its Subsidiaries and refinancing permitted their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the terms of this Lease shall contain the written agreement arrangement of the Leasehold Mortgagee that Landlord shall be notified NASDAQ OMX Financing and ICE Financing and any information used in connection therewith, except with respect to any information provided by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by TenantNYSE Euronext, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage its Subsidiaries or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructiontheir respective Representatives.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Nasdaq Omx Group, Inc.), Merger Agreement (Intercontinentalexchange Inc)
Financing. Tenant may seek Each applicable Landlord shall be entitled to obtain encumber one or more of its Hotels with a loan Mortgage on commercially reasonable terms and in such event, such Landlord, the applicable Owner and Manager shall be required to finance execute and deliver, and such Landlord agrees to require Mortgagee to execute and deliver, an instrument (a “Subordination Agreement”) which shall be recorded in the Improvements jurisdiction where any such encumbered Hotel is located, which provides that:
A. This Agreement and any extensions, renewals, replacements or modifications thereto, and all right and interest of Manager in and to refinance such Hotel, shall be subject and subordinate to the Improvements Mortgage; and
B. If there is a foreclosure of a Mortgage in connection with which title or possession of such Hotel is transferred to the Mortgagee (or its designee) or to a purchaser at foreclosure or to a subsequent purchaser from time to time during the Term. For such purpose onlyMortgagee (or from its designee) (each of the foregoing, Tenant shall have the righta “Subsequent Holder”), with Landlord’s prior written approval, which Manager shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest disturbed in its rights under this LeaseAgreement, so long as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with no Manager Event of Default (beyond the Leasehold Mortgagee;
applicable notice and cure period, if any) has occurred thereunder which entitles the applicable Owner to terminate this Agreement, and (b) The Landlord the applicable Lease has not been terminated as a result of a monetary default which arises from acts or failure to act by Manager pursuant to this Agreement, provided, however, that such Subsequent Holder shall not be required (a) liable in any way to sign Manager for any Trust Deed act or omission, neglect or default of the Noteprior Landlord or Owner (b) responsible for any monies owing or on deposit with any prior Landlord or Owner to the credit of Manager (except to the extent actually paid or delivered to such Subsequent Holder), or otherwise become obligated thereunder;
(c) No such liensubject to any counterclaim or setoff which theretofore accrued to Manager against any prior Landlord or Owner, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and bound by any lien which it creates, shall expire on or before the date of expiration modification of this Lease;
Agreement subsequent to such Mortgage which was not approved by the Mortgagee, (e) The Trust Deed imposes no financial obligations on liable to Manager or beyond such Subsequent Holder’s interest in such Hotel and the Landlordrents, contingent income, receipts, revenues, issues and profits issuing from such Hotel, or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right required to conveyremove any Person occupying such Hotel or any part thereof, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming except if such person claims by, through or under such Leasehold Mortgagee shall, Subsequent Holder. If a Lease is terminated as a result of a non-monetary default which was not caused by virtue a Manager Event of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination Default pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain Agreement or such Subsequent Holder succeeds to the written agreement interest of the Leasehold applicable Owner thereunder, the Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenantor Subsequent Holder, as applicable, and Manager shall accompany agree that the applicable Hotel will continue to be subject to this Agreement or a stand-alone agreement with respect to such notice with a true copy of such Trust Deed Hotel on substantially the same terms and provisions as this Agreement (but neither the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall Mortgagee nor Subsequent Holder will be available for restoration thereof responsible to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionpay past due amounts hereunder).
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Master Management Agreement (Service Properties Trust), Master Management Agreement (Service Properties Trust)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will (i) Each of Parent and Sub shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable, to consummate and obtain the Debt Financing on or prior to the Closing Date on the terms and subject only to the conditions contained in the Debt Financing Commitment (or with other terms and conditions agreed by Parent and the Financing Sources, subject to the restrictions on amendments of the Debt Financing Commitment set forth below), including using its reasonable best efforts to (A) negotiate and enter into a Lender Recognition Agreement definitive agreements with respect to the Leasehold Mortgagee;
(b) The Landlord shall not be required Debt Financing on the terms and subject only to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title conditions contained in the Premises Debt Financing Commitment (or their reversionary interest in with other terms and conditions agreed by Parent and the Improvements;
Financing Sources, subject to the restrictions on amendments of the Debt Financing Commitment set forth below), (dB) Any interest in satisfy (or obtain the Premises which the Trust Deed establishes in a trusteewaiver of), and any lien which it createscause its Affiliates to satisfy (or obtain the waiver of), shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to a timely basis all conditions, covenants and restrictions of this Lease and comply with all obligations applicable to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though Parent or Sub, contained in the same had been performed by Tenant;
(j) The time available Debt Financing Commitment or the definitive agreements related to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession the Debt Financing Commitment that are within the control of the leasehold interest shall be deemed extended by Parent or Sub or any of its or their Affiliates or (C) maintain in effect the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) Debt Financing Commitment. If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior all conditions to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall Debt Financing have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed been satisfied and the indebtedness which it secures at a purchase price equal conditions to Parent’s and Sub’s obligation to consummate the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder Merger have been satisfied or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under permitted by Law) waived, each of Parent and Sub shall use their reasonable best efforts to cause the financial institutions providing the Debt Financing to fund the Debt Financing on the Closing Date. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 5.08, Parent acknowledges and agrees that its obligations to consummate the Transactions on the terms and subject to the conditions set forth herein is not conditioned upon the availability or consummation of the Debt Financing, the availability of any replacement commitments or receipt of the proceeds therefrom, and its obligations under this Lease Agreement include its obligation to restore the Improvements following take such damage or destruction.
(p) No loan actions as may be in an amount which exceeds seventy-five percent (75%) of necessary to have at Closing the fair market value of cash resources to consummate the Improvements Transactions at the time the loan is entered intoClosing.
Appears in 2 contracts
Sources: Merger Agreement (Covance Inc), Merger Agreement (Laboratory Corp of America Holdings)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord Parent and Merger Sub will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available use their respective reasonable best efforts to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedingstake, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain possession the Financing on the terms and conditions described in the Financing Commitments (including any applicable “market flex” provisions), and use reasonable best efforts to (A) maintain in effect the Financing Commitments until the Merger is consummated, (B) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including any applicable “market flex” provisions) contemplated by the Financing Commitments (or on other terms that are acceptable to Parent and could not reasonably be expected to (1) reduce the aggregate amount of net cash proceeds available from the Financing, (2) introduce new or additional conditions or otherwise be reasonably likely to prevent, impede, delay or impair the availability of the leasehold interest shall be deemed extended by Financing or the number ability of days Parent or Merger Sub to consummate the Merger as of delay occasioned by judicial restriction the Closing or application (3) adversely impact the ability of Parent or operation of law Merger Sub to enforce its rights against any such initiation the other parties to the Financing Commitments, (C) satisfy on or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings Closing all conditions precedent applicable to foreclose Parent and Merger Sub in the Trust Deed Financing Commitments, (D) consummate the Financing at or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording Closing, (E) enforce the rights of same by TenantParent and Merger Sub under the Financing Commitments and (F) comply in all material respects with its covenants and other obligations under the Financing Commitments. Notwithstanding anything contained herein to the contrary, and shall accompany such notice with a true copy neither Parent nor Merger Sub will permit any amendment, supplement or other modification of, or waiver of such Trust Deed and any provision or remedy under, the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof Financing Commitments to the extent Tenant is obligated under such amendment, supplement, other modification or waiver could reasonably be expected to (1) reduce the terms aggregate amount of this Lease net cash proceeds available from the Financing, (2) introduce new or additional conditions or otherwise be reasonably likely to restore prevent, impede, delay or impair the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) availability of the fair market value Financing or the ability of Parent or Merger Sub to consummate the Merger as of the Improvements at Closing, or (3) adversely impact the time ability of Parent or Merger Sub to enforce its rights against the loan is entered intoother parties to the Financing Commitments. Parent and Merger Sub will deliver to the Company copies of any such amendment, modification, replacement or waiver promptly upon its execution thereof.
Appears in 2 contracts
Sources: Merger Agreement (American Greetings Corp), Merger Agreement (American Greetings Corp)
Financing. Tenant may seek (a) Each of Parent and Merger Sub shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause each of its respective Affiliates and Representatives to, take all actions and do all things necessary, proper or advisable to obtain the net proceeds of the Financing, or any Substitute Financing, in each case, on the terms and subject only to the conditions expressly set forth in the Financing Commitment Letters (including any “market flex” provisions set forth in any Debt Letter) and subject to any modifications permitted by this Section 5.04 at or prior to the Closing Date, including (i) maintaining in effect the Financing Commitment Letters and complying with all of their respective obligations thereunder to the extent required as a loan condition to finance accessing such Financing, (ii) negotiating, entering into and delivering definitive agreements with respect to the Improvements Financing (the “Definitive Agreements”) on the terms contained in the Financing Commitment Letters (including any “market flex” provisions set forth in any Debt Letter) (or with other terms reasonably acceptable to Parent and without any Prohibited Modifications) and subject only to refinance the Improvements conditions expressly set forth in the Financing Commitment Letters on the date of this Agreement, (iii) satisfying on a timely basis all conditions in the Financing Commitment Letters and the Definitive Agreements that are applicable to Parent or any of its Affiliates or Representatives that are within their control, (iv) if required under the Debt Letters, entering into amendments to the Definitive Agreements with respect to the Debt Financing to give effect to any “market flex” provisions contained in any Debt Letter and (v) subject to the satisfaction of the conditions set forth in Section 7.01 and Section 7.03 (other than those conditions to be satisfied substantially concurrently with the Closing), consummating, and obtaining the net proceeds of, the Financing no later than the Closing.
(b) In the event that all conditions set forth in Article VII have been satisfied or waived or, upon funding shall be satisfied or waived, each of Parent and Merger Sub shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause each of their respective Affiliates and Representatives to, cause each applicable Person that is a party to any of the Financing Commitment Letters to fund the Financing in accordance with its terms on the Closing Date to the extent the proceeds thereof are required to pay the Required Amount and consummate the Merger and the other transactions contemplated thereby. Each of Parent and Merger Sub shall not, and shall use its reasonable best efforts to cause its Affiliates and Representatives not to, take or refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of the Financing (other than as expressly provided by the Debt Letters in respect of the “Backstop Revolving Credit Facility” and the “Backstop L/C Facility” (as such terms are defined in the Debt Commitment Letter)) to be available and funded in the Required Amount at or prior to the Closing; provided that Parent shall be permitted to terminate commitments in respect of the “Backstop Term Loan Facility” (as such term is defined in the Debt Commitment Letter).
(c) Upon reasonable request by the Company from time to time during time, Parent shall keep the Term. For such purpose onlyCompany reasonably informed on a current and timely basis of the status of Parent’s efforts to obtain the Financing and to satisfy the conditions thereof, Tenant shall have including advising and updating the rightCompany, in a reasonable level of detail, with Landlord’s prior respect to status, proposed closing date of the Financing and material terms of the Definitive Agreements and providing copies of substantially final drafts of the primary Definitive Agreements (including, with respect to the Debt Financing, the credit agreement) with sufficient time for the Company to review with its counsel (provided that any fee letter and any engagement letter for the placement of debt securities may be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the conditionality, enforceability, amount, availability or termination of the Financing). Without limiting the generality of the foregoing, Parent shall give the Company prompt written approvalnotice (i) of any breach or default (or alleged or purported breach or default), which shall or any event or circumstance that (with or without notice, lapse of time or both) would reasonably be expected to give rise to any breach or default, by any party to any of the Financing Commitment Letters or Definitive Agreements, (ii) of any termination or repudiation (or alleged or purported termination or repudiation) of any of the Financing Commitment Letters or Definitive Agreements, and (iii) if for any reason at any time Parent believes that it may not be unreasonably withheld, conditioned or delayed, able to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns obtain all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2the Financing on the terms, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises manner or their reversionary interest from the sources contemplated by the Financing Commitment Letters or any Definitive Agreement. Parent shall provide any information reasonably requested by the Company relating to any of the circumstances referred to in clauses (i), (ii) or (iii) of the Improvements;immediately preceding sentence promptly after the Company makes any such request.
(d) Any interest Neither Parent nor Merger Sub shall, without the Company’s prior written consent: permit any amendment, supplement, modification, assignment, termination, replacement or waiver to be made to, or consent to any waiver of, any provision of or remedy under any of the Financing Commitment Letters or Definitive Agreements if such amendment, supplement, modification, termination, assignment, replacement or waiver would or would reasonably be expected to (1) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) below the Required Amount (when taken together with other sources of funds immediately available to Parent (including additional equity commitments that will be funded at or prior to Closing)); provided that Parent shall be permitted to terminate commitments in respect of the “Backstop Term Loan Facility” (as such term is defined in the Premises which Debt Commitment Letter), (2) impose new or additional conditions to the Trust Deed establishes Financing or otherwise expand, amend or modify any of the existing conditions to the Financing, (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against any other party to any of the Financing Commitment Letters or Definitive Agreements or (4) otherwise expand, amend, modify or waive any provision of any of the Financing Commitment Letters or Definitive Agreements in a trusteemanner that in any such case would or would reasonably be expected to prevent, delay or make less likely (A) the funding of the Financing in an amount no less than the Required Amount (or satisfaction of the conditions to the Financing) at or prior to the Closing or (B) the timely consummation of the Merger and any lien which it createsthe other transactions contemplated hereby (the effects described in clauses (1) through (4), shall expire on or before the “Prohibited Modifications”); provided that Parent may amend the Debt Letters to add Debt Financing Entities that have not previously executed the Debt Letters as of the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) Agreement without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide thatthe Company. In the event that any new debt or equity commitment letters or fee letters are entered into in accordance with any termination, prior amendment, replacement, supplement, modification or waiver of any Financing Commitment Letter or Definitive Agreement permitted pursuant to this Section 5.04(d), references to the institution “Financing,” “Debt Financing Parties,” “Definitive Agreements” and “Financing Commitment Letters” (and other like terms in this Agreement) shall be deemed to refer to the Financing as so terminated, amended, supplemented, modified, waived or replaced for all purposes of this Agreement and each such term shall be construed accordingly. Parent shall promptly deliver to the Company copies of any proceedings termination, amendment, supplement, modification, waiver or replacement of any Financing Commitment Letter or Definitive Agreement and each other agreement entered into in connection therewith (provided that any fee letter may be redacted solely as to foreclose fee amounts and other economic terms (including any such terms included in the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing “market flex”) that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements customarily redacted in connection with any Improvementssimilar financings and that could not adversely affect the conditionality, including but not limited to construction loansenforceability, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement amount, availability or termination of the Leasehold Mortgagee that Landlord shall be notified by Financing).
(e) If any portion of the Leasehold Mortgagee within thirty Financing becomes, or is expected to become, unavailable for any reason (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than on account of Parent’s termination of commitments in respect of the filing of a notice of default pursuant to “Backstop Term Loan Facility” (as such term is defined in the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by TenantDebt Commitment Letter)), Parent shall, and shall accompany such notice with a true copy cause its Affiliates and relevant Representatives, as promptly as practicable following the occurrence of such Trust Deed event, to (i) notify the Company in writing thereof and the Note secured thereby; and
reason therefor, (oii) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof use its reasonable best efforts to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be obtain substitute financing in an amount which exceeds seventy-five percent (75%) sufficient, when taken together with any available portion of the fair market value Financing, to enable Parent to consummate the Merger and the other transactions contemplated hereby in accordance with its terms (including to pay the Required Amount) and which does not include any Prohibited Modification or condition to the consummation of such substitute financing that is more onerous in any significant respect than the conditions set forth in the Financing Commitment Letters as of the Improvements at date of this Agreement (any such substitute financing, the time “Substitute Financing”) and (iii) use its reasonable best efforts to obtain a new financing commitment letter that provides for such Substitute Financing and, promptly after execution thereof, deliver to the loan is entered into.Company true, complete and correct copies of the new commitment letter and all related fee letters (provided that any such fee letter may be redacted solely as to fee amounts and other economic terms (including any such terms included in the “market flex”) that are customarily redacted in connection with similar financings and that could not adversely affect the conditionality, enforceability, amount, availability or termination of the Financing) and related definitive financing documents with respect to such Substitute Financing; provided, however, that Parent shall not be required to obtain financing that includes terms and conditions materially less favorable (taking into account any “market flex” provisions) to Parent, relative to those in the portion of the Financing being replaced. Upon obtaining any
Appears in 2 contracts
Sources: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Financing. Tenant may seek (a) Each of Parent, Merger Sub and Merger Sub I shall use its reasonable best efforts (taking into account the expected timing of the Marketing Period) to obtain a loan take (or cause to finance the Improvements be taken) all actions, and to refinance do (or cause to be done) all things necessary, proper or advisable to consummate and obtain the Improvements proceeds of the Debt Financing contemplated by the Debt Financing Commitments on the terms and conditions described in the Debt Financing Commitments (including any flex provisions applicable thereto), including using reasonable best efforts to (i) negotiate definitive agreements with respect thereto on the terms and conditions (including the flex provisions) contained therein or on other terms not materially less favorable, in the aggregate, to Parent (as determined in the reasonable judgment of Parent) and not in violation of this Section 5.15(a) (including clauses (A)-(C) below), (ii) satisfy (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent, Merger Sub and Merger Sub I in the Debt Financing Commitments that are within its control and otherwise comply with its obligations thereunder and pay related fees and expenses on the Closing Date, (iii) maintain in effect the Debt Financing Commitments in accordance with the terms thereof (except for amendments and supplements not prohibited by this Section 5.15(a)) until the transactions contemplated by this Agreement are consummated or this Agreement is terminated in accordance with its terms, and (iv) enforce its rights under the Debt Financing Commitments in the event of a breach by any counterparty thereto that would reasonably be expected to materially impede or delay the Closing. Parent shall have the right from time to time during to amend, supplement, amend and restate or modify the Term. For such purpose onlyDebt Financing Commitments; provided, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against that any such initiation amendment, supplement, amendment and restatement or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leasemodification shall not, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
the Company (mA) The Trust Deed shall provide that, prior add new (or adversely modify any existing) conditions precedent to the institution of any proceedings to foreclose Debt Financing as set forth in the Trust Deed or of negotiations to accept an assignment Debt Financing Commitments as in lieu effect on the date hereof, (B) reduce the aggregate amount of the foreclosure Debt Financing Commitments (including by changing the amount of fees to be paid or original issue discount of the Trust DeedDebt Financing as set forth in the Debt Financing Commitments) in a manner that would adversely impact in any material respect the ability of Parent to consummate the Merger or that would otherwise be expected to delay or impede the Merger or (C) otherwise be reasonably expected to (I) prevent, impede or delay the holder consummation of the Merger and the other transactions contemplated by this Agreement, (II) make the funding of the Debt Financing as set forth in the Debt Financing Commitments less likely to occur or beneficiary thereof (III) adversely impact the ability of Parent, Merger Sub or Merger Sub I to enforce their rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto. For the avoidance of doubt, but subject to the foregoing, Parent may amend, supplement, amend and restate, modify or replace the Debt Financing Commitments as in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date of this Agreement or (y) to increase the amount of Indebtedness contemplated by the Debt Financing Commitments. For purposes of this Section 5.15, references to “Debt Financing” shall notify Landlord in writing that such proceedings or negotiations are include the financing contemplated by the Debt Financing Commitments as permitted to be commencedamended, supplemented or modified by this Section 5.15(a) (and, if applicable, shall include any Alternative Financing used to satisfy the obligations under this Agreement) and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice references to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.“Debt Financing
Appears in 2 contracts
Sources: Merger Agreement (Aecom Technology Corp), Agreement and Plan of Merger (Urs Corp /New/)
Financing. Tenant may seek (a) From the date of this Agreement until the earlier of the First Parent Merger Effective Time or the termination of this Agreement in accordance with Article 7, Parent shall use reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing Date to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit (including under Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date). Such actions shall include using reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a waiver thereof, on a timely basis all Financing Conditions to the extent within the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit (including under Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date), which shall reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent that would not constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof; and (iv) in the event that the Financing Conditions have been satisfied or waived or, upon funding would be satisfied, consummate the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing) to the extent required to pay the Required Amount (after taking into account any cash on hand, available lines of credit (including under Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date).
(b) From the date of this Agreement until the earlier of the First Parent Merger Effective Time or the termination of this Agreement in accordance with Article 7, Parent and its Affiliates shall give the Company prompt notice of any material breach, default or repudiation by any party to the Debt Commitment Letter of which Parent or its Affiliates becomes aware. Parent shall keep the Company informed on a reasonably current basis upon request by the Company of the status of its efforts to arrange the Debt Financing contemplated by the Debt Commitment Letter.
(c) In the event all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result of the Company’s breach of any provision of this Agreement or failure to satisfy the conditions set forth in Article 6, and except where such unavailability is the result of the incurrence of any Permanent Financing (as defined below)), then Parent shall (i) promptly notify the Company thereof and the reasons therefor, (ii) use reasonable best efforts to obtain Alternative Financing from the same or alternative Debt Financing Entities on terms and conditions, taken as a loan whole, no less favorable to finance Parent than as contemplated by the Improvements Debt Commitment Letter and not involving any conditions that would constitute an Adverse Effect on Financing as compared to refinance those set forth in the Improvements from time Debt Commitment Letter delivered to time during the Term. For Company on the date hereof, that, when taken together with the portion of the Debt Financing that remains available and any cash on hand, available lines of credit (including under Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such purpose onlyevent, Tenant shall have and (iii) use reasonable best efforts to obtain, and, when obtained, provide the rightCompany with a true, correct and complete copy of, a new financing commitment that provides for such Alternative Financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be expected to reduce the aggregate principal amount of such Alternative Financing to be funded on the Closing Date or impose additional conditions precedent to the funding of such Alternative Financing on the Closing Date.
(d) From the date of this Agreement until the earlier of the First Parent Merger Effective Time or the termination of this Agreement in accordance with Landlord’s Article 7, without the prior written approval, consent of the Company (which shall not be unreasonably withheld, conditioned delayed or delayedconditioned), Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt Financing Document (except in connection with the incurrence of other financing to assign all replace such financing) if such amendment, modification, supplement, restatement, assignment, substitution or part of Tenant’s interest under this Lease, as security to any Institutional Lender replacement would (a “Leasehold Mortgagee”A) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed impose additional conditions precedent or mortgage (collectively, expand upon the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond conditions precedent to the request within twenty funding of the Debt Financing, (20B) Business Days, reduce the request shall amount of the Debt Financing or the net cash proceeds available from the Debt Financing to an amount that would be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not less than an amount that would be required to sign pay the Required Amount (after taking into account any Trust Deed cash on hand, available lines of credit (including Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date), (C) prevent or materially delay or make materially less likely the funding of the Debt Financing (or the Note, or otherwise become obligated thereunder;
(csatisfaction of the Financing Conditions) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the LandlordClosing Date or materially impair, contingent delay or otherwise;
(f) The Trust Deed shall neither subordinate nor affect prevent the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way consummation of the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements Transactions or the Premises;
other transactions contemplated by this Agreement, (gD) Except as otherwise provided herein, no Leasehold Mortgagee materially adversely affect Parent’s ability to consummate the Transactions or anyone claiming by, through the other transactions contemplated by this Agreement or under such Leasehold Mortgagee shall, by virtue (E) materially adversely impact the ability of such claim, acquire Parent to enforce its rights against the Debt Financing Sources or any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by other parties to the number of days of delay occasioned by judicial restriction Debt Commitment Letter or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
the definitive agreements with respect thereto (kclauses (A) If two or more Leasehold Mortgagees exercise their rights under this Leasethrough (E), the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modifiedeach an “Adverse Effect on Financing”); provided that Parent may, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including (m1) The Trust Deed shall provide thatto add and appoint additional arrangers, prior bookrunners, underwriters, agents, lenders and similar Debt Financing Entities that have not executed the Debt Financing Documents as in effect on the date hereof and, in connection therewith, amend the economic and other arrangements with respect to such appointments, (2) modify pricing, (3) terminate or reduce any commitments under the institution Debt Financing in order to obtain or as a result of any proceedings to foreclose having obtained a Permanent Financing and/or (4) increase the Trust Deed or of negotiations to accept an assignment in lieu aggregate amount of the foreclosure Debt Financing, in each case, so long as such amendments would not be reasonably expected to result in an Adverse Effect on Financing. Upon request of the Trust DeedCompany, Parent shall keep the holder Company informed in reasonable detail of the status of Parent’s efforts to arrange the Debt Financing. Any alternative, substitute or beneficiary thereof shall notify Landlord replacement debt financing obtained by Parent in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed accordance with this paragraph and the indebtedness which it secures at a purchase price equal previous paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include the full amount then owing under said Trust Deedfinancing contemplated by any Alternative Financing and references to “Debt Commitment Letter,” “Debt Fee Letters,” “Debt Financing Documents,” “Debt Financing Entities,” “Debt Financing Sources” or “Financing” shall include the documents (or commitments or financing sources, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements as applicable) in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof Alternative Financing to the extent Tenant is obligated under permitted by this Section 5.21, and such Alternative Financing shall be required to comply with the terms provisions of this Lease Agreement to restore the Improvements following same extent as the Debt Financing contemplated by the Debt Commitment Letter. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Parent or its Affiliates be required to pay any fees or any interest rates applicable to the Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)) or agree to any term (including any market flex term (if any)) less favorable (taken as a whole) to Parent than such damage term contained in the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions (if any)). Parent and Parent Merger Subs expressly acknowledge and agree that their obligations under this Agreement are not subject to, or destructionconditioned on, Parent’s or Parent Merger Subs’ receipt of financing.
(pe) No loan may be Notwithstanding anything to the contrary in an amount which exceeds seventy-five percent (75%) this Section 5.21, Parent may, without notice to or consent of the fair market value Company, reduce the amount of the Improvements Debt Financing under the Debt Commitment Letter, or terminate the Debt Commitment Letter, to the extent that the remaining amount of the Debt Financing under the Debt Commitment Letter (if any) after such reduction or termination, taken together with the net cash proceeds of one or more offerings, placements, sales and/or other issuances of debt and/or equity securities of or term loans to Parent subsequent to the date hereof (collectively, “Permanent Financing”), together with cash on hand, available lines of credit (including under Parent’s existing revolving credit facility) and other sources of funds available to Parent on the Closing Date, is sufficient to consummate the transactions contemplated hereunder to occur at Closing (including payment of the time the loan is entered intoRequired Amount).
Appears in 2 contracts
Sources: Merger Agreement (Gildan Activewear Inc.), Merger Agreement (Hanesbrands Inc.)
Financing. Tenant may seek to obtain a loan to finance the Improvements Parent shall procure and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Leaseavailable, as security of the Closing, funds sufficient to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such pay all of the cash amounts required to be provided by Parent for the consummation of the transactions contemplated hereby, including the amounts payable in connection with the consummation of the Merger, all related fees and expenses required to be paid as of the date of the consummation of the Merger and the funds to Tenant be provided by (or on behalf of) Parent to the Company to enable the Company to fund the repayment or refinancing of the Notes and the Company Credit Agreement, in each case to the extent required to be repaid or refinanced, and the amounts payable pursuant to a promissory note Sections 6.14(b) and a trust deed or mortgage (collectively, the “Trust Deed”6.14(c). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation In furtherance and experience delineated not in Section 12.1. If Landlord does not respond limitation to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall applyforegoing:
(a) Landlord will enter into a Lender Recognition Subject to the terms and conditions of this Agreement with the Leasehold Mortgagee;
(bincluding clauses (I) The Landlord and (II) of this Section 6.13(a)), Parent shall not be required use its reasonable best efforts to sign any Trust Deed or the Notetake, or otherwise become obligated thereunder;
(c) No such liencause to be taken, charge all actions and to do, or encumbrance shall constitute a lien cause to be done, all things necessary, advisable or encumbrance upon proper to arrange and obtain the Landlord’s fee title proceeds of the Debt Financing on the terms and conditions described in the Premises or their reversionary interest in Debt Commitment Letter pursuant to the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire terms thereof on or before prior to the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the LandlordClosing Date. Parent shall not, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of the Company, (I) permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter, if such amendment, supplement, replacement, modification or waiver (A) reduces (or could reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount), except (x) to the extent cash on hand is available and will be available as of the Closing Date on the Parent Balance Sheet in an aggregate amount at least equal to the amount of any such reduction or (y) to the extent of the outstanding aggregate principal amount of the Notes with respect to which the Consent Solicitations are successful (but taking into account all amounts payable in connection with the Consent Solicitations, including consent fees, solicitation agent fees and other expenses payable in connection with the Consent Solicitations) or (B) imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the receipt of the initial Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter, in each Leasehold Mortgagee;case with respect to clause (B), in a manner that would reasonably be expected (x) taking into account the expected timing of the Marketing Period, to delay or prevent or make less likely the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date or (y) to adversely impact the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto, in each case, as so amended replaced, supplemented or otherwise modified, relative to the ability of the Parent to enforce its rights against such other parties to the Debt Commitment Letter as in effect on the date hereof or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities, so long as such action would not reasonably be expected to materially delay or prevent the Closing or adversely impact Parent’s ability to enforce its rights under the Debt Commitment Letter) or (II) terminate the Debt Commitment Letter unless at the time of such termination such Debt Commitment Letter is replaced with a new commitment letter that, were it structured as an amendment to the Debt Commitment Letter, would satisfy the requirements of the foregoing clause (I) (which replacement commitment letter shall be considered the Debt Commitment Letter hereunder). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(mb) The Trust Deed Parent shall provide thatuse its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (as, for the avoidance of doubt, may be amended, modified or replaced pursuant to the terms and conditions of this Agreement), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions consistent with the terms and conditions contained in the Debt Commitment Letter or, if available, obtain alternative financing on other terms that are acceptable to Parent, provided, that (i) Parent promptly provides notice to the Company of such alternative financing, and (ii) the terms of such alternative financing are (x) in respect of certainty of funding, equivalent in all material respects to (or more favorable to the Company than) the conditions set forth in the Debt Commitment Letter as in effect on the date hereof and (y) not less beneficial in any material respect to Parent in terms of its ability to enforce its rights in connection with such alternative financing, relative to Parent’s ability to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date hereof or the definitive agreements with respect thereto (any such permitted replacement, amended, modified or alternative financing to the Debt Financing, including any potential issuance of cash convertible or other notes by Parent or its Subsidiaries, collectively with the Debt Financing, the “Available Financing”), (C) to satisfy on a timely basis, taking into account the expected timing of the Marketing Period, and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Available Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter (or, as applicable, the conditions in connection with other Available Financing), to consummate the Available Financing at or prior to the institution Closing, (D) to enforce its rights under the Debt Commitment Letter relating to the Available Financing, including using reasonable best efforts to cause the Persons committing to fund the Available Financing to fund on the Closing Date the Available Financing required to consummate the transactions contemplated hereby and (E) to comply with its obligations under the Debt Commitment Letter relating to the Available Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies of all substantially final drafts and executed definitive agreements for the Available Financing, at each time promptly upon the Company’s request.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any proceedings material breach or default by any party to foreclose the Trust Deed Debt Commitment Letter or of negotiations any Debt Financing Agreement, or (iii) a Lender indicates either in writing or orally that it will not provide, or it refuses to accept an assignment in lieu provide, all or any portion of the foreclosure Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Without limiting Parent’s other obligations under this Section 6.13, if the commitments with respect to all or any portion of the Trust Deed, Debt Financing expires or is terminated or all or any portion of the holder Debt Financing otherwise becomes unavailable or beneficiary thereof shall notify Landlord in writing it becomes reasonably foreseeable that such proceedings events will occur, then Parent shall (x) promptly notify the Company of such event and the reasons therefor, (y) use reasonable best efforts to obtain alternative financing from the same or negotiations are alternative financing sources in an amount sufficient to pay all cash amounts required to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements paid in connection with any Improvementsthe transactions contemplated by this Agreement, including but not limited as promptly as practicable following the occurrence of such event, and (z) obtain, and when obtained, provide the Company with a copy of, a new financing commitment that provides for such alternative financing, together with the related fee letter (subject to construction loansredaction solely of fee amounts, long term loans original issue discount amounts, pricing caps and refinancing permitted by the terms other economic provisions that are customarily redacted in connection with merger agreements of this Lease shall contain type, provided, that such redactions do not relate to any terms that would adversely affect the written agreement conditionality, enforceability, availability, termination or aggregate principal amount of the Leasehold Mortgagee that Landlord Debt Financing (other than through the operation of original issue discount)) (which new financing commitment shall be notified by considered the Leasehold Mortgagee within thirty (30Debt Commitment Letter hereunder). Parent’s obligations under this Section 6.13(c) days of shall apply to any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionAvailable Financing.
(pd) No loan may be in an amount which exceeds seventy-five percent (75%) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement, including the payment of any fees and expenses and repayment or refinance of the fair market value of Notes and the Improvements at the time the loan is entered intoCompany Credit Agreement and all amounts payable pursuant to Sections 6.14(b) and 6.14(c).
Appears in 2 contracts
Sources: Merger Agreement (NXP Semiconductors N.V.), Merger Agreement (Freescale Semiconductor, Ltd.)
Financing. Tenant may seek Parent has delivered to obtain a loan to finance the Improvements Company true, correct and to refinance complete copies of an executed commitment letter and fee letters from the Improvements from time to time during financial institutions identified therein (the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold MortgageeDebt Commitment Letter”) which has advanced such funds to Tenant pursuant provide, subject to a promissory note the terms and a trust deed or mortgage conditions therein, debt financing in the amounts set forth therein (collectively, being collectively referred to as the “Trust DeedDebt Financing”). Landlord’s written approval As of the date hereof, the Debt Commitment Letter has not been amended or denial shall be provided to Tenant within twenty modified, no such amendment or modification is contemplated (20) Business Days other than amendments or modifications that are permitted by Section 5.10), and, as of Tenant’s written requestthe date hereof, which shall contain the information regarding respective obligations and commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent has fully paid any and all commitment fees or other fees in connection with the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Debt Commitment Letter that are payable on or prior to the request within twenty date hereof. The Debt Commitment Letter is in full force and effect as of the date hereof. The Debt Commitment Letter constitutes the legal, valid and binding obligations of the parties thereto (20other than the Financing Sources) Business Daysand, to the knowledge of Parent, the request shall be deemed approvedFinancing Sources, in each case, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity. In the event Tenant assigns all or any portion As of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach under the Debt Commitment Letter on the part of Parent or its Subsidiaries or, to the knowledge of Parent, any other parties thereto. As of the date of this Lease;
(e) The Trust Deed imposes no financial obligations Agreement and subject to the satisfaction of the conditions set forth in Article VI, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing will not be available to Parent on the LandlordClosing Date. Subject to payment of customary fees, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right Debt Commitment Letter contains all of the conditions precedent to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in obligations of the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject parties thereunder to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time make Debt Financing available to Parent on the terms therein. There are no side letters or other agreements, contracts or arrangements to which Parent or any of its Affiliates is a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior party related to the institution funding or investing, as applicable, of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions Debt Financing other than as expressly set forth in the filing of a notice of default pursuant to Debt Commitment Letter and any customary engagement letter and non-disclosure agreements that do not impact the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage conditionality or destruction amount of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionDebt Financing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Nexeo Solutions Holdings, LLC), Merger Agreement (WL Ross Holding Corp.)
Financing. Tenant may seek (a) Parent is a party to obtain and has accepted a loan to finance fully executed commitment letter dated April 12, 2023 (together with all exhibits and schedules thereto, the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold MortgageeCommitment Letter”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage from the lenders party thereto (collectively, the “Trust DeedLenders”). Landlord’s written approval or denial shall be provided ) pursuant to Tenant within twenty (20) Business Days of Tenant’s written requestwhich the Lenders have agreed, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond subject to the request within twenty (20) Business Daysterms and conditions thereof, to provide debt financing in the request shall be deemed approvedamounts set forth therein. In The debt financing committed pursuant to the event Tenant assigns all or any portion of Tenant’s Interest Commitment Letter is collectively referred to secure a loan permitted under in this Section 14.2, then Agreement as the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;“Financing.”
(b) The Landlord shall Parent has delivered to the Company a true, complete and correct copy of the executed Commitment Letter and any fee letters entered into pursuant to the Commitment Letter, subject, in the case of such fee letters, to redaction solely of fee and other economic provisions that are customarily redacted in connection with transactions of this type and that could not be required to sign in any Trust Deed event affect the conditionality, enforceability, availability, termination or amount of the Note, or otherwise become obligated thereunder;Financing.
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title Except as expressly set forth in the Premises Commitment Letter, there are no conditions precedent to the obligations of the Lenders to provide the Financing or their reversionary interest any contingencies that would permit the Lenders to reduce the aggregate principal amount of the Financing, including any condition or other contingency relating to the amount or availability of the Financing pursuant to any “flex” provision. Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all terms and conditions to be satisfied by it in the Improvements;Commitment Letter on or prior to the Closing Date, nor does Parent have Knowledge that any Lender will not perform its obligations thereunder. There are no side letters, understandings or other agreements, contracts or arrangements of any kind relating to the Commitment Letter or the Financing that could affect the conditionality, enforceability, availability, termination or amount of the Financing.
(d) Any interest The Financing, when funded in accordance with the Premises which Commitment Letter and giving effect to any “flex” provision in or related to the Trust Deed establishes in a trusteeCommitment Letter (including with respect to fees and original issue discount), will provide Parent with cash proceeds on the Closing Date sufficient for the satisfaction of all of Parent’s obligations under this Agreement and the Commitment Letter, including the payment of the Merger Consideration, and any lien fees and expenses of or payable by Parent or Parent’s Affiliates, any required reimbursement of fees and expenses paid by the Company and/or its Subsidiaries, and for any repayment or refinancing of any outstanding indebtedness (including the Company Credit Agreement) of the Company and/or its Subsidiaries contemplated by, or required in connection with the transactions described in, this Agreement or the Commitment Letter (such amounts, collectively, the “Financing Amounts”).
(e) The Commitment Letter constitutes the legal, valid, binding and enforceable obligations of Parent and all the other parties thereto and is in full force and effect. No event has occurred which it creates(with or without notice, shall expire lapse of time or both) constitutes, or could constitute, a default, breach or failure to satisfy a condition by Parent under the terms and conditions of the Commitment Letter. Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied by Parent on a timely basis or that the Financing will not be available to Parent on the Closing Date, except pursuant to a Permitted Termination (as defined below). Parent has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Commitment Letter on or before the date of expiration this Agreement, and will pay in full any such amounts due on or before the Closing Date as and when due. In each case except as permitted by Section 5.16(b) (with any such modification, amendment or alteration promptly notified in writing to Company), the Commitment Letter has not been modified, amended or altered, the Commitment Letter will not be amended, modified or altered at any time through the Closing, and the aggregate commitments under the Commitment Letter have not been terminated, reduced, withdrawn or rescinded in any respect, and, to the Knowledge of this Lease;
Parent, no termination, reduction, withdrawal, modification, amendment, alteration or rescission thereof is contemplated (e) The Trust Deed imposes no financial obligations on other than to the Landlordextent reduced pursuant to the mandatory reduction terms of the Commitment Letter, contingent or otherwise;including with the proceeds from the consummation of the transactions contemplated by the Climate Transaction Agreement).
(f) The Trust Deed In no event shall neither subordinate nor affect the Landlordreceipt or availability of any funds or financing (including the Financing) by or to Parent or any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had obligations under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionAgreement.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (National Instruments Corp), Merger Agreement (Emerson Electric Co)
Financing. Tenant (a) Parent shall use its reasonable best efforts to (taking into account the expected timing for Closing) obtain, no later than the Closing Date, the proceeds of the Financing on the terms and conditions described in the Commitment Letters (subject to replacement thereof in accordance with Section 5.17(c)), including (i) maintaining in effect the Commitment Letters in accordance with and subject to the terms and conditions set forth therein (it being understood that the Commitment Letters may seek be replaced or amended as provided below), (ii) negotiating definitive agreements with respect to obtain the Debt Financing (the “Definitive Agreements”) substantially consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, any “market flex” provisions contained in any related fee letter), (iii) satisfying on a loan timely basis (or obtaining a waiver of) all conditions in the Debt Commitment Letter and (iv) complying with the covenants applicable to finance it in the Improvements Commitment Letters and to refinance in the Improvements from time to time during Definitive Agreements for the TermFinancing. For such purpose only, Tenant shall have In the rightevent that all conditions contained in the Commitment Letters (other than, with Landlord’s respect to the Debt Financing, the availability of the Cash Equity) have been satisfied, Parent shall use its reasonable best efforts to cause the Debt Financing Sources and Equity Investor to fund the Financing at Closing (including by promptly taking enforcement action in the event of a breach by the Debt Financing Sources or Equity Investor of their obligations under the Commitment Letters or Definitive Agreements); provided, however, in no event shall “reasonable best efforts” of Parent under this Section 5.17 be deemed or construed to require Parent to instigate or pursue litigation against any of the Debt Financing Sources. Parent shall not, without the prior written approval, consent of the Company (which shall not be unreasonably withheld, conditioned or delayed) permit any amendment or modification to, to assign all or part any waiver of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed material provision or mortgage (collectivelyremedy under, the “Trust Deed”Commitment Letters if such amendment, modification, waiver or remedy (i) imposes any new (or expands or adversely modifies any existing) conditions to the consummation of the Financing in a manner that could reasonably be expected to prevent or delay the Closing or the Financing or (ii) reduces the amount of the Financing to an amount that would be less than the amount that would be required to pay the Financing Amount (unless, in the case of a reduction to the Debt Financing, the Cash Equity is increased by the amount of any such reduction). Landlord’s written approval ; provided, however, that Parent may (x) amend, modify or denial shall be provided supply the Debt Commitment Letter to Tenant within twenty add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties to the Debt Commitment Letter, (20y) Business Days of Tenant’s written requestamend or modify the Debt Commitment Letter to implement the "market flex" provisions included in the related fee letter, which shall contain or (z) otherwise amend or replace the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord Debt Commitment Letter so long as (A) such amendment does not respond impose terms or conditions that would reasonably be expected to delay or prevent the Closing, (B) the terms of such amendment do not reduce the amount of the Financing to an amount that would be less than the amount that would be required to pay the Financing Amount (unless, in the case of a reduction to the request within twenty (20) Business DaysDebt Financing, the request shall Cash Equity is increased by the amount of any such reduction), (C) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of Alternative Debt Financing set forth below, (D) such amendment does not adversely affects the ability of Parent to enforce its rights against other parties to the Commitment Letters or the Definitive Agreements, (E) such amendment does not waive any remedy available to Parent or its Affiliates thereunder or adversely affect the ability of Parent or its Affiliates to enforce or cause the enforcement of its rights under the Financing, (F) such amendment does not allow for the early termination of the Debt Commitment Letter or (G) such Amendment cannot reasonably be deemed approvedexpected to prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. In the event Tenant assigns that any portion of the Debt Financing becomes unavailable or any of the Definitive Agreements shall be withdrawn, repudiated, terminated or rescinded, regardless of the reason therefor (other than the right of Parent to terminate this Agreement pursuant to Section 7.4 hereof) Parent will (i) use its reasonable best efforts to obtain from the same and/or alternative debt financing (in an amount, when taken together with the Cash Equity, at least equal to the Financing Amount) (the “Alternative Debt Financing”) and (ii) promptly notify the Company of such unavailability and the reason therefor. For the purposes of this Agreement (other than as expressly provided otherwise), the term “Debt Financing” shall be deemed to include any Alternative Debt Financing arranged in compliance herewith, and the terms “Debt Commitment Letter” and “Definitive Agreement” shall be deemed to include any commitment letter (or similar agreement) or definitive agreement with respect to any such Alternative Debt Financing; provided, that, notwithstanding anything to the contrary herein, in no event shall any Alternative Debt Financing or amendment with respect to the Debt Commitment Letter be deemed to adversely expand the obligations set forth in this Section 5.17 of the Company and its Subsidiaries.
(b) Parent shall promptly notify the Company in writing (i) of any breach or default by any party to a material provision of the Commitment Letter, (ii) of the receipt by any of Parent or Merger Sub or any of their Affiliates of any written notice from any Debt Financing Source with respect to any actual or threatened breach, dispute, termination or repudiation by any party to any Commitment Letter (but excluding in each case, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or any Definitive Agreement with respect thereto, (iii) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of Tenant’s Interest the Financing necessary to secure a loan permitted under this Section 14.2fund the Financing Amount (taking into account the Cash Equity) on the terms, then in the following manner or from the sources contemplated by the Commitment Letters and (iv) of the termination or expiration in writing (or attempted or purported termination in writing, whether or not valid) of the Debt Commitment Letter. Parent shall apply:
keep the Company reasonably informed (aand provide information reasonably requested by the Company in writing) Landlord will enter into a Lender Recognition Agreement with of the Leasehold Mortgagee;
(b) The Landlord status of its efforts to arrange the Financing and any other financing; provided that Parent shall not be required obligated to sign provide any Trust Deed information that would jeopardize any attorney-client privilege on a reasonably current basis of the status of its efforts to consummate the Financing. Notwithstanding the foregoing, compliance by Parent with this Section 5.17(b) shall not relieve Parent of its obligation to consummate the transactions contemplated by this Agreement, whether or not the Note, or otherwise become obligated thereunder;Financing is available.
(c) No The Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide, and shall use reasonable best efforts to cause its Subsidiaries and their respective Representatives to provide, all cooperation reasonably requested by Parent in connection with the arrangement, marketing, preparation and closing of the Debt Financing as well as any necessary consents, amendments, repayments or terminations of existing financing arrangements) (provided that such lienrequested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries), charge or encumbrance shall constitute including using reasonable best efforts to, upon ▇▇▇▇▇▇’s request:
(i) participate in a lien or encumbrance reasonable number of virtual meetings, conference calls, presentations, road shows, due diligence sessions and sessions with arrangers, potential lenders and/or rating agencies, in each case at reasonable times and locations mutually agreed, and upon reasonable notice;
(ii) assist Parent with the Landlord’s fee title preparation of customary rating agency presentations, bank information memoranda, offering memoranda, confidential information memoranda, private placement memoranda, prospectuses and similar marketing documents and investor, lender presentations (including a customary authorization letter) and other similar customary documents and materials required in connection with the Debt Financing Sources (the “Marketing Material”) and otherwise assist in the Premises marketing efforts of Parent and its Debt Financing; provided that no such Marketing Material shall be issued by the Company or their reversionary interest its Subsidiaries;
(iii) assist Parent in connection with the preparation of (but not executing prior to the Closing), execution and delivery of any loan agreement, guarantees, pledge and security documents, customary closing certificates, perfection certificates, solvency certificate, and any other definitive financing documents as may be reasonably requested by Parent or the Debt Financing Sources and otherwise reasonably cooperating with Parent and the Debt Financing Sources in facilitating the pledging of collateral and the granting of security interests relating to the collateral if required by the Debt Commitment Letter, it being understood that such documents will not take effect until the Closing;
(iv) use commercially reasonable efforts to assist Parent in the Improvementspreparation of pro forma financial information and pro forma financial statements (it being understood that the Parent shall be responsible for the preparation of (including costs and expenses of) such pro forma financial information and statements);
(v) at least four (4) Business Days prior to the Closing Date, provide all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by Parent at least nine (9) Business Days prior to the Closing Date that relates to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and customary beneficial ownership certifications;
(vi) cooperate in connection with the repayment or defeasance of the Credit Facilities and release, discharge and termination of the related Liens, including (i) delivering such payoff letters in accordance with Section 6.2, and (ii) delivering any UCC authorizations or other release and termination of the related Liens, and termination, defeasance or similar notices; and
(vii) promptly supplement the written information provided pursuant to this Section 5.17 to the extent that any such information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements were made. The foregoing notwithstanding, nothing in this Section 5.17 or otherwise shall require (i) the Company or any persons who are directors of the Company or any of its Subsidiaries prior to the Closing Date to pass resolutions or consents to approve or authorize any aspect of the Debt Financing; (ii) the Company or any of its Subsidiaries or any of their respective Representatives to enter into any agreement (other than customary authorization letters) or undertake any obligation which becomes effective prior to the Closing and that is not contingent on the occurrence of the Closing; (iii) the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur any other cost or expense in connection with the Debt Financing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of the Parent; (iv) the Company, any Subsidiary or any Representative thereof to deliver any opinion; (v) the Company or any of its Subsidiaries to take any action that could reasonably be expected to (A) conflict with, or result in any violation or breach of, or default under, the organizational documents thereof, any applicable Law, or any material contract to which it is a party (to the extent not entered into in contemplation of this Section 5.17(c)); (B) result in the waiver of any attorney-client privilege of, or conflict with any confidentiality obligations binding on, the Company or any of its Subsidiaries (so long as the Company has reasonably cooperated with Parent and used commercially reasonable efforts to permit disclosure to the extent permitted by such confidentiality obligations) or (C) cause any condition to the Closing set forth in ARTICLE VI not to be satisfied; (vi) any Representative of the Company to deliver any certificate or take any other action in any personal capacity; (vii) the preparation, in connection with the Debt Financing, of quarterly or annual financial statements for the Company with a different fiscal quarter or fiscal year end than the Company’s current fiscal quarter and fiscal year end dates; or (viii) the Company or any of its Subsidiaries to provide or cause to be provided any Excluded Information.
(d) Any interest Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the Premises which cooperation contemplated by this Section 5.17(d) (other than the Trust Deed establishes preparation of its normal quarterly and annual financial statements). Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs, charges or expenses (including reasonable and documented out-of-pocket attorneys’ fees), suffered or incurred by them in connection with (i) the Debt Financing (including the arrangement or obtaining thereof), (ii) any action taken by them pursuant to this Section 5.17(d), or (iii) any information utilized in connection with the Debt Financing, in each case, other than as a trusteeresult of fraud, and any lien which it createsbad faith, shall expire gross negligence or willful misconduct by or on or before the date behalf of expiration of this Lease;such Person.
(e) The Trust Deed imposes Notwithstanding anything to the contrary, the Company shall be deemed to have complied with Section 5.17(c) for all purposes of this Agreement (including ARTICLE III) unless (i) the Company has materially breached its obligations under Section 5.17(c) and (ii) the Debt Financing has not been obtained and such failure arises primarily as a result of the Company’s willful breach of its obligations under Section 5.17(c). For the avoidance of doubt, the parties acknowledge and agree that the provisions contained in Section 5.17(c) represent the sole obligation of the Company and its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of the Financing, and no financial obligations on other provision of this Agreement (including the Landlord, contingent exhibits and schedules hereto) shall be deemed to expand or otherwise;modify such obligations.
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber All non-public or otherwise hypothecate in confidential information regarding the Company or any way the Landlord’s fee of its Subsidiaries obtained by Parent or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination its Representatives pursuant to this Lease) without Section 5.17 shall be kept confidential in accordance with the prior written consent Confidential Disclosure Agreement; it being understood that Parent and its representations may disclose such information to its Debt Financing Sources, other potential sources of each Leasehold Mortgagee;
(m) capital, rating agencies and prospective lenders during syndication of the Debt Financing or any Alternative Debt Financing, subject to and in accordance with customary confidentiality practices for syndicated processes of the Debt Financing Sources or customary market standards for dissemination of such type of information. The Trust Deed shall provide that, prior Company hereby consents to the institution use of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, its and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneysits Subsidiaries’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements logos in connection with the Debt Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by Subsidiaries or the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage reputation or destruction goodwill of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage Company or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) any of the fair market value of the Improvements at the time the loan is entered intoSubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Starrett L S Co), Merger Agreement (Starrett L S Co)
Financing. Tenant may seek (a) Buyer will promptly notify Seller of any proposal by any of the financial institutions party to the Debt Financing Commitment Letter to withdraw, terminate or make a material change in the amount or terms of the Debt Financing Commitment Letter. In addition, upon Seller's reasonable request, Buyer shall advise and update Seller, in a level of detail reasonably satisfactory to Seller, with respect to the status, proposed closing date and material terms of the proposed Debt Financing. Buyer shall not consent to any amendment, modification or early termination of any Equity Financing Commitment Letter or the Debt Financing Commitment Letter that is reasonably likely to impair materially the Equity Financing or the Debt Financing.
(b) Buyer shall, and shall cause its Affiliates to, use all commercially reasonable efforts to (1) maintain the effectiveness of the Debt Financing Commitment Letter, (2) enter into definitive documentation with respect to the Debt Financing on the terms contained in the Debt Financing Commitment Letter, (3) satisfy all funding conditions to the Debt Financing set forth in the definitive documentation with respect to the Debt Financing, (4) cause to be made available to Buyer, on or prior to the first anniversary of the Dexter Closing, the Debt Financing in an aggregate principal amount equal to the principal amount of the Debt Financing, and (5) perform its obligations under the Financing Commitments, including its obligations to agree to changes in the structure, terms and pricing contained in the Financing Commitments (it being understood that such obligations shall not include any obligation to cause any of its Affiliates to increase the amount of their Equity Financing).
(c) At Seller's request, 60 Business Days following the satisfaction or waiver of Buyer's conditions in Article VII (other than conditions that, by their nature, are to be satisfied on the Closing Date), Buyer shall be required to fund the Closing Purchase Price by drawing on the "Senior Subordinated Facility" and the "Senior Unsecured Credit Facility"(as such terms are defined in the Debt Financing Commitment Letter).
(d) The Qwest Parties shall provide and shall cause their Affiliates to provide, reasonable assistance to Buyer's efforts to obtain a loan the Debt Financing (including, subject to finance the Improvements and Section 5.10(c), efforts to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or obtain high yield bond financing as part of Tenant’s interest under this Leasethe Debt Financing), as security including facilitating customary due diligence and arranging for senior officers of Seller to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds meet with prospective lenders in customary presentations or to Tenant pursuant to a promissory note participate in customary road shows, in each case upon Buyer's request with reasonable prior notice and a trust deed or mortgage (collectivelyat Buyer's cost and expense. At Buyer's cost and expense, the “Trust Deed”). Landlord’s written approval or denial Qwest Parties shall, and shall be provided cause their Affiliates to, use commercially reasonable efforts to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation cause their respective accountants and experience delineated attorneys to provide customary assistance in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approvedsuch financing. In the event Tenant assigns all of a registered public offering or an offering in accordance with Rule 144A under the Securities Act of the debt or equity securities of Company or its Affiliates, the Qwest Parties will, upon Buyer's request with reasonable prior notice and at Buyer's cost and expense, use their commercially reasonable efforts to cause KPMG LLP to deliver to Company and its Affiliates and the underwriters in any portion such offering a letter covering such matters as are reasonably requested by Company or its Affiliates or such underwriters, as the case may be, and as are customarily addressed in accountants' "comfort letters," and to provide their consent to the references to them as experts and the inclusion in any applicable filings of Tenant’s Interest their auditor's reports. Buyer acknowledges that (i) the assistance provided by the Qwest Parties and their Affiliates, officers, employees and representatives are being provided at the request of Buyer, and (ii) none of the Qwest Parties shall have any liability to secure a loan permitted under lenders or prospective lenders in connection with the activities contemplated by this Section 14.2, then 5.10(d). Buyer shall indemnify and hold harmless the following shall apply:
Qwest Parties from and against any Losses resulting from any assistance or activities provided pursuant to this Section 5.10. The ▇▇▇▇▇▇ 38 EXECUTION provisions of this Section 5.10(d) (aincluding the indemnity provisions) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign affect any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date rights of expiration of this Lease;Buyer under Section 9.1.
(e) The Trust Deed imposes no financial obligations on Parties agree and acknowledge that up to $217,000,000 of additional equity of Buyer in excess of the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest amounts committed in the Improvements or ▇▇▇▇▇▇ Equity Financing Commitment Letter may be required under the Premises;
terms and conditions of the Debt Financing Commitment Letter to consummate the Transactions (g) Except such amount as otherwise is required, the "ADDITIONAL EQUITY"). Buyer agrees to use commercially reasonable efforts to obtain equity commitments for the Additional Equity (provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed that nothing herein shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease obligate Buyer or its Affiliates to sell securities on terms less favorable than those terms received by any Leasehold Mortgagee as though the same had been performed by Tenant;
Persons that have provided the ▇▇▇▇▇▇ Equity Financing Commitment Letter, (jii) The time available obligate Buyer or its Affiliates to conduct a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedingspublic offering for equity securities, or (iii) obligate Affiliates of Buyer to obtain possession of contribute additional equity other than as provided in the leasehold interest shall be deemed extended by ▇▇▇▇▇▇ Equity Financing Commitment Letter). From the number of date hereof until 30 days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leaseafter the Dexter Closing Date, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord Seller shall have the right, but not the obligation, within sixty (60) days after receiving of such notice right to purchase the Trust Deed and the indebtedness which it secures at commit to provide all or a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement portion of the Leasehold Mortgagee Additional Equity on the same terms and conditions as the equity provided for in the ▇▇▇▇▇▇ Equity Financing Commitment Letter (and on such other terms as specified in Exhibit R) provided, however, that Landlord Seller shall in no event be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity entitled to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be own equity securities in an amount which exceeds seventygreater than the Seller Common Equity Limitation. Such commitment by Seller shall be evidenced by an equity commitment letter containing substantially the same terms and conditions as the Equity Financing Commitment Letter. From and after 30 days after the Dexter Closing Date, Buyer shall be free to enter into a binding commitment with third parties or Affiliates of Buyer for the Additional Equity (or such lesser amount of Additional Equity that remains after giving effect to amounts subscribed for by Seller); provided that Seller shall be offered the right to provide up to twenty-five percent (7525%) of such offered Additional Equity on the fair market value most favorable terms and conditions on which any equity has been sold to such third parties and provided that Seller shall in no event be entitled to own equity securities in an amount greater than the Seller Common Equity Limitation. From and after a date 30 days preceding the Termination Date, Seller shall have the right to provide the entire amount of any remaining Additional Equity not subscribed for as of such date on the most favorable terms and conditions on which any equity has been sold (such amount committed by Seller during this period being referred to as the "FINAL ADDITIONAL EQUITY COMMITMENT"), whether as Additional Equity or pursuant to the terms of the Improvements at ▇▇▇▇▇▇ Equity Financing Commitment Letter (and on such other terms as specified in Exhibit R); provided that Seller shall in no event be entitled to own equity securities in an amount greater than the time Seller Common Equity Limitation. Any Additional Equity subscribed for by Seller in excess of the loan is entered into.Seller Common Equity Limitation shall be provided in Permissible Preferred Stock (as defined below). Notwithstanding anything herein to the contrary, Buyer (through Affiliates or third parties) shall up until the Closing Date have the right to provide Additional Equity in such amounts as necessary to prevent or limit the issuance of Permissible Preferred Stock to satisfy the required Additional Equity. If Seller subscribes for Additional Equity pursuant to this Section 5.10(e) ("SELLER ADDITIONAL EQUITY") and Buyer exercises its right pursuant to Section 10.5 to assign its rights and obligations under this Agreement to a wholly-owned subsidiary of Buyer, then (i) such wholly-owned subsidiary will also assume Buyer's obligations to deliver the Seller Additional Equity to Seller, (ii) Buyer shall contribute the Seller Additional Equity to such wholly-owned subsidiary, and (iii) such wholly-owned subsidiary shall deliver the Seller Additional Equity (and the Closing Purchase Price) to Seller in exchange for the LLC Interests and the cash price for the Seller Additional Equity. Seller shall have the right to assign all or a ▇▇▇▇▇▇ 39 EXECUTION
Appears in 2 contracts
Sources: Purchase Agreement (Dex Media West LLC), Purchase Agreement (Dex Media Inc)
Financing. Tenant may seek (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to obtain the Financing on the terms and conditions described in the Financing Documents, including (i) maintaining in effect the Financing Documents until the Transactions are consummated in accordance with their respective terms, (ii) satisfying, or causing to be satisfied, on a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign timely basis all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond conditions to the request closing of and funding under the Financing Documents applicable to Parent and/or Merger Sub that are within twenty its control, including paying when due all commitment fees and other fees arising under the Financing Documents as and when they become due and payable thereunder, and (20iii) Business Daysconsummating the Financing at or prior to the Effective Time in accordance with the terms of the Financing Documents; provided that Parent and/or Merger Sub may amend or modify the Financing Documents, the request shall be deemed approved. In the event Tenant assigns and/or elect to replace all or any portion of Tenant’s Interest the Debt Financing or increase the amount of debt financing to secure a loan permitted under this Section 14.2be obtained with alternative debt financing subject only to such conditions to funding as are substantially similar, then or are not less favorable in aggregate, from the following shall apply:
standpoint of the Company and its shareholders (aother than the holders of Excluded Shares), than the terms and conditions as set forth in the Financing Documents as in effect on the date hereof (the “Alternative Financing”), in each case only so long as (A) Landlord will enter into a Lender Recognition Agreement the aggregate proceeds of the Financing (as amended or modified) and/or the Alternative Financing, together with the Leasehold Mortgagee;aggregate proceeds of the Equity Financing and an amount of Available Cash that equals or exceeds the Available Cash Amount, will be sufficient for Parent and the Surviving Company to pay (x) the Merger Consideration, and (y) any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby and (B) such amendment or modification or the Alternative Financing would not prevent, materially delay or materially impede or impair the ability of Parent and Merger Sub to consummate the Transactions. Parent shall deliver to the Company true and complete copies of all Contracts or other arrangements pursuant to which any alternative sources have committed to provide the Alternative Financing (the “Alternative Financing Documents”) (except for customary engagement and fee letters) as promptly as practicable after execution thereof. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Documents and to the extent is not replaced by the Alternative Financing, Parent shall promptly notify the Company.
(b) The Landlord Notwithstanding anything to the contrary contained in this Agreement, nothing contained in Section 6.07(a) shall not require, and in no event shall the reasonable best efforts of Parent or Merger Sub be required deemed or construed to sign require, either Parent or Merger Sub to pay any Trust Deed fees in excess of, or agree to “market flex” provisions less favorable to Parent, Merger Sub or the NoteSurviving Company (or any of their Affiliates) than, those contemplated by the Debt Commitment Letters and/or, if applicable, the Alternative Financing Documents (in each case, whether to secure waiver of any conditions contained therein or otherwise become obligated thereunder;otherwise).
(c) No Subject to the terms and conditions of this Agreement, Parent and Merger Sub agree not to amend, modify or waive any provision of the Financing Documents, if such lienamendment, charge modification or encumbrance waiver reduces (or would reduce) the aggregate amount of the Financing or imposes new or additional conditions or otherwise expands, amends or modifies the conditions to the Financing in a manner that would be expected to prevent or materially delay the ability of the Company, Parent or Merger Sub to consummate the Transactions or otherwise adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Documents. Parent shall constitute a lien give the Company prompt notice (i) upon becoming aware of any breach of any provision of, or encumbrance termination by any party to, the Financing Documents or (ii) upon the Landlord’s fee title in receipt of any written notice from any person with respect to any threatened breach or threatened termination of the Premises or their reversionary interest in the Improvements;Financing Documents.
(d) Any interest The Company agrees to provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide to Parent and Merger Sub, all reasonable cooperation as may be requested by Parent or its Representatives in connection with the Debt Financing and/or Alternative Financing and the Transactions, including (i) participation in meetings, presentations, due diligence sessions, road shows, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the Company or its Subsidiaries with Representatives of Parent and any sources or prospective sources of the Debt Financing and/or Alternative Financing, (ii) assisting in the Premises which preparation of offering memoranda, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations, other marketing documents and similar documents reasonably requested by Parent or its Representatives in connection with the Trust Deed establishes Debt Financing and/or Alternative Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in a trusteeany materials relating to the Debt Financing and/or Alternative Financing and delivery of one or more customary representation letters), (iii) as promptly as practicable, furnishing Parent and any sources or prospective sources of the Debt Financing and/or Alternative Financing with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent or any sources or prospective sources of the Debt Financing and/or Alternative Financing and is reasonably available to the Company (the “Required Information”) and using reasonable best efforts to cause the Company’s independent accountants to provide assistance and cooperation in connection therewith to Parent and any sources or prospective sources of the Debt Financing and/or Alternative Financing, (iv) reasonably cooperating with advisors, consultants and accountants of Parent or any sources or prospective sources of the Debt Financing and/or Alternative Financing with respect to the conduct of any examination, appraisal or review of the financial condition or any of the assets or liabilities of the Company or any of its Subsidiaries, including for the purpose of establishing collateral eligibility and values, (v) assisting in the preparation of one or more credit agreements, note purchase agreements, indentures and/or other instruments, as well as any pledge and security documents, and other definitive financing documents, collateral filings or other certificates or documents as may be requested by Parent and otherwise facilitating the pledging of collateral, (vi) (A) to the extent customary and not prohibited by applicable Laws, facilitating the granting of guaranty, security or pledging of collateral and (B) executing and delivering any guaranty, pledge and security documents, commitment letters, certificates and other definitive financing documents (the “Definitive Debt Documents”), provided that any collateral pledged or security granted by the Company or any of its Subsidiaries under, and any lien obligations of the Company or any of its Subsidiaries under, any Definitive Debt Documents to which it createsis a party shall be contingent upon the occurrence of the Effective Time, (vii) taking all actions reasonably necessary to (A) permit prospective sources of the Debt Financing and/or Alternative Financing to evaluate the Company’s or any of its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, provided that the information provided in connection therewith to such prospective sources shall expire on be subject to the terms of the Confidentiality Agreements, and (B) establish bank and other accounts, blocked account agreements and lock box arrangements in connection with the foregoing, including over Available Cash, (viii) furnishing Parent, Merger Sub and their respective Representatives, as well as any prospective sources of the Debt Financing and/or Alternative Financing, promptly (and, provided that Parent shall have requested, in writing, such information from the Company at least fifteen (15) Business Days prior to the Closing, then in any event at least ten (10) Business Days prior to the Closing) with all documentation and other information required with respect to the Debt Financing and/or Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations, provided that the information provided to such prospective sources shall be subject to the terms of the Confidentiality Agreements, (ix) using reasonable best efforts to obtain any necessary rating agencies’ confirmation or before approval of the date Debt Financing and/or Alternative Financing, and (x) taking all corporate actions reasonably necessary to permit the consummation of expiration the Debt Financing and/or Alternative Financing, including the execution and delivery of any other certificates, instruments or documents contemplated by the Debt Financing and/or Alternative Financing and reasonably requested by Parent and to permit the proceeds thereof to be made available at Closing to consummate the Transactions. Neither the Company nor any of its Subsidiaries shall be required to (x) pay any commitment or similar fee prior to the Effective Time or (y) commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time or that would otherwise subject it to actual or potential liability in connection with any Financing. Nothing contained in this Lease;Section 6.07(c) or otherwise shall require the Company or any of its Subsidiaries to be an issuer or other obligor with respect to any Financing prior to the Effective Time. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing and/or Alternative Financing.
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee Parent shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions upon the termination of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedingsAgreement in accordance with its terms, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended promptly upon request by the number of days of delay occasioned Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by judicial restriction the Company or application or operation of law against its Subsidiaries in connection with any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination cooperation provided pursuant to this Lease) without Section 6.07 and shall indemnify and hold harmless the prior written consent Company, its Subsidiaries and their respective Representatives for and against any and all liabilities, expenses or losses actually suffered or incurred by them in connection with the arrangement of each Leasehold Mortgagee;
the Financing and any information utilized in connection therewith (m) The Trust Deed other than information provided in writing by the Company or its Subsidiaries specifically for use in connection therewith), except in the event such liabilities, expenses or losses arose out of or result from the fraud, gross negligence, recklessness or willful misconduct of the Company, its Subsidiaries or any of their respective Representatives. Each of Parent and Merger Sub acknowledges and agrees that the Company and its Subsidiaries and their respective Representatives shall provide thatnot, prior to the institution of Effective Time, incur any proceedings liability to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing any person under any financing that such proceedings or negotiations are to be commenced, Parent and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements Merger Sub may raise in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionTransactions.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Yao Jinbo), Merger Agreement (58.com Inc.)
Financing. Tenant may seek (a) During the Pre-Closing Period, Parent shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain a loan the Equity Financing on the terms and conditions described in the Equity Commitment Letter (or other terms and conditions as Parent shall agree so long as not in contravention of this Section 6.15(a)), including maintaining in effect the Equity Commitment Letter in accordance with the terms and subject to finance the Improvements conditions thereof, complying with its obligations pursuant to the Equity Commitment Letter and enforcing its rights pursuant to refinance the Improvements from time to time during Equity Commitment Letter. Parent shall cooperate with and assist the TermCompany in enforcing its third party beneficiary rights under the Equity Commitment Letter. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which Parent shall not permit any amendment or modification to be unreasonably withheldmade to, conditioned or delayedany waiver of any provision or remedy under, the Equity Commitment Letter if such amendment, modification or waiver would, or would reasonably be expected to (i) reduce the aggregate amount of the Equity Financing (except as expressly permitted by the Equity Commitment Letter), (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Equity Financing or any other terms to the Equity Financing in a manner that would reasonably be expected to (A) delay or prevent the Closing Date, or (B) make the timely funding of the Equity Financing, or the satisfaction of the conditions to obtaining the Equity Financing, less likely to occur in any respect, or (iii) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to assign enforce its rights under the Equity Commitment Letter, in each case, unless otherwise agreed to by the Company in writing. Parent shall give the Company prompt written notice of any material breach by any party to the Equity Commitment Letter, of which Parent becomes aware, or any termination of the Equity Commitment Letter or unavailability of any portion of the Equity Financing.
(b) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to cause their respective Representatives, to provide to Parent, all reasonable cooperation (x) reasonably requested by Parent and (y) as is necessary and customary to assist Parent in connection with the arrangement of any debt financing in connection with the transactions contemplated herein (the “Debt Financing”), including to: (i) promptly (and in any event, no later than five (5) Business Days after the date hereof) provide Parent and its Financing Sources and their respective agents with the Financial Statements, (ii) participate in a reasonable number of meetings, presentations, drafting sessions, due diligence sessions, sessions with prospective Financing Sources, including direct contact between senior management and the other Representatives of the Company, on the one hand, and the actual and potential Financing Sources, on the other hand (including reasonable and customary one-on-one meetings with the parties acting as lead arrangers or part of Tenant’s interest under this Leaseagents for, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage prospective lenders, purchasers and other financing sources with respect to, the Debt Financing (collectively, the “Trust DeedFinancing Sources”). Landlord’s written approval or denial ), and, if reasonably requested by Parent, sessions with rating agencies, in each case, at reasonable times and locations mutually agreed, (iii) assist with the preparation of materials for investor presentations, bank information memoranda, confidential information memoranda, marketing materials and similar documents required in connection with the Debt Financing and, if reasonably requested by Parent rating agency materials; (iv) provide appropriate representations in connection with the preparation of financial statements and other financial data of the Company (provided that in no event shall such representations with respect to financial information exceed the scope of the representations and warranties contained in Section 4.9 and shall be effective no earlier than as of the Closing) and direct the Company’s independent auditors to provide reasonable and customary assistance and cooperation in connection with the Debt Financing; (v) cooperate with the marketing efforts of Parent and its Financing Sources for any portion of the Debt Financing; (vi) facilitate the obtaining of guarantees, pledging of collateral in connection with the Debt Financing, including using commercially reasonable efforts to cause individuals who will continue as officers, directors or managers of the Company or its Subsidiaries after the Closing to execute and deliver on behalf of the Company or its Subsidiaries, as applicable, customary guarantee, pledge and security documents, currency or interest hedging arrangements or other definitive financing documents or other customary certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer with respect to solvency matters as of the Closing on a pro forma basis) to facilitate any such guarantee, obtaining and perfection of security interests in collateral from and after the Closing, in each case, as are necessary and customary in connection with the Debt Financing (provided to Tenant within twenty that any rights, interests, obligations or covenants contained in such documents shall be effective no earlier than as of the Closing); (20vii) provide, at least three (3) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond prior to the request within twenty Closing, to Parent and its Financing Sources all documentation and other information required by regulatory authorities under applicable “know your customer”, FinCEN and anti-money laundering rules and regulations, including the PATRIOT Act to the extent such documentation or information is requested at least ten (2010) Business DaysDays in advance of Closing; (viii) use commercially reasonable efforts to cause individuals that will continue as officers, directors or managers of the Company or its Subsidiaries to take corporate action (subject to the occurrence of the Closing) reasonably necessary to permit the completion of the Debt Financing; (ix) assist with the payoff of existing Indebtedness of the Company and the Acquired Companies on the Closing Date and the release of related Liens on the Closing Date (including obtaining customary payoff letters, lien terminations and other instruments of discharge); and (x) to the extent applicable, provide customary authorization letters to the Parent and its Financing Sources authorizing the distribution of information to the Financing Sources and containing a representation to the Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company, the request shall be deemed approved. In the event Tenant assigns all Acquired Companies or any portion of Tenanttheir respective securities. The Company hereby consents to the reasonable use of the Company’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement logos in connection with the Leasehold Mortgagee;
arranging and consummation of the Debt Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or their marks. Notwithstanding anything to the contrary herein, in no event shall (bA) The Landlord shall not any officer or employee of an Acquired Company be required to sign execute any Trust Deed agreement or document to the Noteextent such agreement or document is not contingent upon the Closing or would be effective prior to the Closing, or otherwise become obligated thereunder;require any such person to bear or assume any personal liability (other than the customary authorization letters referred to above), (B)(i) the pre-Closing board of directors of the Company and (ii) the pre-Closing directors, managers and general partners of the Acquired Companies be required to adopt resolutions or (C) the Company or any Acquired Company be required to prepare any pro-forma financial statements to comply with its obligations hereunder (subject to the obligations hereunder to cooperate in the preparation thereof).
(c) No such lienNothing in this Agreement (including this Section 6.15 will require cooperation of the Company or any of its Subsidiaries to the extent it would (i) require the Company or any of its Subsidiaries to take any action that would reasonably be expected to conflict with, charge or encumbrance shall constitute result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the organizational documents of the Company or any of its Subsidiaries, any material contract, or any Applicable Law, to waive or amend any term of this Agreement, or to cause any representation or warranty in this Agreement to be breached by the Company, (ii) unreasonably interfere with the conduct of the business or operations of the Company or any of its Subsidiaries, (iii) result in any officer, manager or director (or Person occupying a lien similar position) of the Company or encumbrance any its Subsidiaries incurring (or potentially incurring) personal liability with respect to any matters relating to the Debt Financing or the approval thereof, (iv) require the Company or any of its Subsidiaries or any of their respective Affiliates to incur any liability or commit to any obligation that is not contingent upon the Landlord’s fee title occurrence of the Closing, (v) require providing access to or disclose information that the Company is advised by legal counsel would jeopardize any attorney-client privilege of, or violate confidentiality requirements binding on, the Company or any of its Subsidiaries (provided that, in either case, the Premises Company and its Subsidiaries shall reasonably cooperate in seeking alternative means (including through entering into a common interest agreement or their reversionary interest in the Improvements;such other means to allow disclosure but not waive attorney-client privilege) whereby such information will be provided or disclosed to Parent without violating any such agreement or waiving such attorney-client privilege), or (vi) require any such Person to change any fiscal period.
(d) Any interest Parent shall reimburse the Acquired Companies for all reasonable out-of-pocket and documented expenses incurred in connection with the Premises which actions taken at Parent’s request pursuant to this Section 6.15. Parent shall indemnify and hold harmless the Trust Deed establishes Acquired Companies and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing (including any action taken in accordance with this Section 6.15) and any information utilized in connection therewith (other than information provided by or on behalf of the Company or any of its Subsidiaries expressly for use in connection therewith), except to the extent arising from the gross negligence, bad faith or willful and intentional misconduct of any Acquired Company or their respective Representatives as determined by a court of competent jurisdiction in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;final non-appealable court order.
(e) The Trust Deed imposes no financial obligations To the extent there are any receivables, payables or loans between the Company or any of its Subsidiaries, other than Bayswater and any of its Subsidiaries (the “Bayswater Entities”), on the Landlordone hand, contingent or otherwise;
and any of the Bayswater Entities, on the other hand (f) The Trust Deed the “Intercompany Payables, Receivables and Loans”), the Company shall neither subordinate nor affect the Landlord’s right cause all such Intercompany Payables, Receivables and Loans to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
either (i) The Landlord will accept performance under this Lease fully paid and satisfied by the party that is the obligor or (ii) extinguished without any Leasehold Mortgagee as though liability by the same had been performed payee by Tenant;
(jA) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession in the case of Subsidiaries of the leasehold interest shall Company, causing such Intercompany Payables, Receivables and Loans to be deemed extended by distributed to the number of days of delay occasioned by judicial restriction Company and (B) contributing, directly or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two indirectly through one or more Leasehold Mortgagees exercise their rights under this LeaseSubsidiaries, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modifiedsuch Intercompany Payables, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior Receivables and Loans to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu capital of the foreclosure relevant obligee, in each case, as of the Trust Deed, close of business on the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have Business Day immediately preceding the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionClosing Date.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Goldfield Corp), Merger Agreement (Goldfield Corp)
Financing. Tenant may seek (a) Each Parent Party shall use its reasonable best efforts to obtain a loan obtain, or cause to finance be obtained, the Improvements proceeds of the Financing on the terms and to refinance conditions described in the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this LeaseCommitment Letters (including, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelynecessary, the “Trust Deed”flex” provisions contained in the Fee Letter). Landlord’s written approval or denial shall be provided , including using its reasonable best efforts with respect to Tenant within twenty (20i) Business Days of Tenant’s written requestmaintaining in effect the Commitment Letters, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond (ii) negotiating definitive agreements with respect to the request within twenty Debt Financing (20the “Definitive Agreements”) Business Daysconsistent with the terms and conditions contained therein (including, as necessary, the request shall be deemed approved“flex” provisions contained in the Fee Letter) or, if available, on other terms that are acceptable to Parent and would not adversely affect (including with respect to timing, taking into account the expected timing of the Marketing Period) the ability of the Parent Parties to consummate the transactions contemplated herein, and (iii) taking into account the expected timing of the Marketing Period, satisfying on a timely basis all conditions applicable to Parent and its Subsidiaries to obtaining the Financing that are within the Parent Parties’ control. In the event Tenant assigns that all conditions contained in the Debt Commitment Letter and the Securities Purchase Agreement (other than, with respect to the Debt Financing, the availability of the Equity Financing, the Subordinated Securities Financing, the MSDC Financing or any portion of Tenant’s Interest the Rollover Investment and, with respect to secure a loan permitted the Subordinated Securities Financing, the Debt Financing, the Equity Financing, the MSDC Financing or the Rollover Investment) have been satisfied (or upon funding will be satisfied), each Parent Party shall use its reasonable best efforts to timely cause the Lenders and the Subordinated Securities Purchaser to fund the Debt Financing and the Subordinated Securities Financing, as applicable (including by seeking through litigation to enforce its rights under this Section 14.2the Debt Financing Commitment Letter and Definitive Agreements and the Securities Purchase Agreement, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;as applicable).
(b) The Landlord Parent Parties shall not be required to sign any Trust Deed or the Notenot, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
the Company, (mi) The Trust Deed shall provide thatterminate any Commitment Letter, prior unless such Commitment Letter is replaced in a manner consistent with the following clause (ii), or (ii) permit any amendment or modification to, or any waiver of any material provision or remedy under, or replace, the Commitment Letters if such amendment, modification, waiver, or replacement (w) would (1) add any new condition to the institution Financing Commitments (or modify any existing condition in a manner adverse to Parent) or otherwise that would be reasonably expected to adversely affect (including with respect to timing, taking into account the expected timing of the Marketing Period) the ability of the Parent Parties to consummate the transactions contemplated by this Agreement or the likelihood of the Parent Parties doing so, or (2) taking into account the expected timing of the Marketing Period, would be reasonably expected to make the timely funding of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure Financing or satisfaction of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are conditions to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if obtaining any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity Financing less likely to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.occur,
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Dell Inc)
Financing. Tenant may seek (a) Each of Parent, Merger Sub 1 and Merger Sub 2 shall take, or shall cause to obtain a loan to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary to arrange the Improvements from time Debt Financing on the terms and conditions described in the Debt Commitment Letters, including (i) to time during negotiate and enter into the Term. For such purpose only, Tenant shall have definitive agreements with respect thereto on the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Leaseterms and conditions contained in the Debt Commitment Letters (including, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelynecessary, the “Trust Deed”). Landlordflex” provisions contained in any related fee letter) by the Closing Date, and (ii) to satisfy (or if determined advisable by Parent, obtain the waiver of) on a timely basis all conditions to obtaining the Debt Financing within Parent’s written approval or denial shall be provided control and to Tenant within twenty (20) Business Days comply with all of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond its obligations pursuant to the request within twenty (20) Business Days, Debt Commitment Letters and the request shall be deemed approveddefinitive agreements related thereto. In the event Tenant assigns that all conditions to funding the commitments contained in the Debt Commitment Letters have been satisfied, each of Parent, Merger Sub 1 and Merger Sub 2 shall use its reasonable best efforts to cause the Financing Sources to fund the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date (including by taking enforcement action to cause the Financing Sources to provide the Debt Financing). Each of Parent, Merger Sub 1 and Merger Sub 2 shall use its reasonable best efforts to enforce all of its rights under the Debt Commitment Letters. Parent shall give the Company prompt notice of any material breach by any party to the Debt Commitment Letters or the definitive agreements related thereto of which Parent has become aware or any termination of any of the Debt Commitment Letters or such definitive agreements. In the event that any portion of Tenantthe Debt Financing becomes unavailable, Parent, Merger Sub 1 and Merger Sub 2 shall (1) use their reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative debt financing for any such portion from alternative debt sources (“Alternative Financing”) in an amount that will still enable Parent, Merger Sub 1 and Merger Sub 2 to consummate the transactions contemplated by this Agreement, and (2) promptly notify the Company of such unavailability and the reason therefor. If obtained, Parent shall deliver to the Company true and complete copies of all agreements (including redacted copies of engagement and fee letters, removing only fee amounts, market “flex” provisions and certain other terms (none of which concern or would adversely affect the amounts, availability, timing or conditionality of the Debt Financing)) pursuant to which any such alternative source shall have committed to provide Parent, the Initial Surviving Corporation or the Surviving Company with Alternative Financing. Parent, Merger Sub 1 and Merger Sub 2 shall not, without the Company’s Interest prior written consent, permit any amendment or modification to, or any waiver of any provision or remedy under, any Debt Commitment Letter or any definitive agreements related thereto unless the terms of such Debt Commitment Letter or definitive agreements related thereto, in each case as so amended, modified or waived, are substantially similar to secure those in such Debt Commitment Letter or definitive agreement related thereto, prior to giving effect to such amendment, modification or waiver (other than economic terms, which shall be as good as or better for Parent, Merger Sub 1 and Merger Sub 2 than those in the Debt Commitment Letter or definitive agreement relating thereto prior to giving effect to such amendment, modification or waiver); provided that in the case of amendments or modifications of any Debt Commitment Letter or a loan permitted definitive agreement relating thereto, the foregoing shall only apply if such amendment or modification (x) could reasonably be expected to (I) adversely affect the ability or likelihood of Parent, Merger Sub 1 or Merger Sub 2 timely consummating the transactions contemplated by this Agreement or (II) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing less likely to occur, (y) reduces the amount of the Debt Financing or (z) adversely affects the ability of Parent, Merger Sub 1 or Merger Sub 2 to enforce their rights against other parties to the Debt Commitment Letters or the definitive agreements relating thereto. Parent shall provide the Company with prompt written notice of the receipt of any notice or other communication from any Financing Source with respect to such Financing Source’s failure or anticipated failure to fund its commitments under this Section 14.2, then any Debt Commitment Letters or definitive agreement in connection therewith. Parent shall keep the following shall apply:
(a) Landlord will enter into Company reasonably informed on a Lender Recognition Agreement with current basis of the Leasehold Mortgagee;status of its efforts to consummate the Debt Financing.
(b) Notwithstanding anything contained in this Agreement to the contrary, Parent expressly acknowledges and agrees that Parent’s, Merger Sub 1’s and Merger Sub 2’s obligations hereunder are not conditioned in any manner upon Parent, Merger Sub 1 or Merger Sub 2 obtaining any financing. The Landlord shall not be failure, for any reason, other than as a result of any material breach of this Agreement by the Company, of Parent, Merger Sub 1 and Merger Sub 2 to have sufficient cash available on the date that the Closing is required to sign any Trust Deed or occur pursuant to Section 2.01 hereof and/or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance failure to pay the aggregate Cash Consideration on the date that the Closing is required to occur pursuant to Section 2.01 hereof shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration Willful Breach of this Lease;
(e) The Trust Deed imposes no financial obligations on the LandlordAgreement by Parent, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants Merger Sub 1 and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionMerger Sub 2.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Humana Inc), Merger Agreement (Aetna Inc /Pa/)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
Buyer shall use its reasonable best efforts to (bx) The Landlord shall not be required to sign any Trust Deed or the Notetake, or otherwise become obligated thereunder;
(c) No such liencause to be taken, charge all actions and do, or encumbrance shall constitute a lien cause to be done, all things necessary or encumbrance upon advisable to arrange the Landlord’s fee title in Debt Financing and the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before Sale Leaseback Financing as promptly as practicable following the date of expiration of this Lease;
Agreement and (ey) The Trust Deed imposes no financial obligations consummate the Debt Financing and the Sale Leaseback Financing on the LandlordClosing Date, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;including using its reasonable best efforts to:
(i) The Landlord will accept performance under maintain in effect the Debt Commitment Letter and not permit or consent to any amendment or modification to be made to, not consent to any waiver of any provision or remedy under, and not replace, the Debt Commitment Letter, if such amendment, modification, waiver or replacement: (A) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) to an amount that would cause Buyer to not have sufficient funds to pay the Purchase Price and to pay all fees and expenses required to be paid by the Buyer relating to the consummation of the transactions contemplated hereby and after giving effect to any increase in the amount of the Equity Financing or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing in a manner that would reasonably be expected to (1) materially delay or prevent the Closing, (2) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (3) adversely impact the ability of Buyer to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto when required pursuant to this Lease Agreement (provided that Buyer may (I) amend, restate, supplement or otherwise modify the Debt Commitment Letter to (x) (i) add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date hereof, (ii) remove lenders, lead arrangers, bookrunners, syndication agents or similar entities who executed the Debt Commitment Letter as of the date hereof, or (iii) to reallocate commitments or change, assign or reassign titles, duties or roles to, or between or among, any entities party thereto, (y) amend the economic or other arrangements with respect to the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or (II) make any changes in connection with any “market flex” provisions contemplated by any Leasehold Mortgagee as though fee letter related to the same had been performed by TenantDebt Financing (a “Fee Letter”), in each case, if such addition of additional parties, such removal of parties, such reallocation, such assignment, such reassignment, such amendment or such changes (x) do not reduce the Debt Financing to be funded at the Closing, (y) do not result in additional conditions or contingencies to the funding of the Debt Financing or modify in a manner adverse, in any material respect, to Buyer the conditions to funding set forth in the Debt Commitment Letter, or (z) would not, individually or in the aggregate, be reasonably expected to delay or prevent the Closing;
(jii) The time available cause the Equity Financing to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession be consummated upon satisfaction of the leasehold interest shall be deemed extended by Financing Conditions contained in the number of days of delay occasioned by judicial restriction Equity Commitment Letter;
(iii) satisfy on or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgageeprior to the Closing Date all Financing Conditions that are within Buyer’s control;
(kiv) If two negotiate, execute and deliver Debt Financing Documents that reflect the terms consistent, in all material respects, with the terms contained in, or more Leasehold Mortgagees exercise their rights under this Leasesuch other terms that are not materially less favorable to Buyer in the aggregate than, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevailDebt Commitment Letter;
(lv) This Lease shall not be materially modifiedif necessary to achieve a Successful Syndication (as such term is defined in the Fee Letter), amended or surrendered (except upon termination pursuant accept to this Lease) without the prior written consent of each Leasehold Mortgageefullest extent all modifications to the Debt Financing provided in the “market flex” provisions contemplated by the Fee Letter;
(mvi) The Trust Deed shall provide thatin the event that the conditions set forth in Section 8.01 and Section 8.02 and the Financing Conditions have been satisfied or, immediately upon funding would be satisfied, cause the Financing Sources to fund the full amount of the Debt Financing at or prior to the institution of any proceedings Closing (or such lesser amount as may be required to foreclose consummate the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924transactions contemplated hereby);
(nvii) Tenant enforce its rights under the Commitment Letters in the event of a Financing Failure Event to the extent, in the case of the Debt Commitment Letter, such Financing Failure Event results from a breach of the Debt Commitment Letter by the Financing Sources;
(viii) maintain in effect and not terminate the Sale Leaseback Agreement and not permit or consent to any amendment or modification to be made to the Sale Leaseback Agreement that is materially adverse to the Buyer;
(ix) satisfy on or prior to the Closing Date all SLB Conditions that are within Buyer’s control and required to be satisfied on or prior to the Closing Date;
(x) in the event that the conditions set forth in Section 8.01 and Section 8.02 and the SLB Conditions have been satisfied or, upon funding would be immediately satisfied, cause (including by enforcing its rights under the Sale Leaseback Agreement) the Sale Leaseback Purchaser to consummate the transactions under the Sale Leaseback Agreement simultaneously with the Closing hereunder; and
(xi) enforce its rights under the Sale Leaseback Agreement Letters in the event of a Financing Failure Event, to the extent such Financing Failure Event results from a breach of the Sale Leaseback Agreement by the Sale Leaseback Purchaser.
(b) Buyer, upon the written request of Seller, shall keep Seller informed in reasonable detail of the status of its efforts to arrange the Financing and the Sale Leaseback Financing. Buyer shall give Landlord Seller prompt notice of any breach or repudiation or other Financing Failure Event, or receipt of a written notice of any Trust Deed prior anticipated or asserted breach or repudiation or other Financing Failure Event, by any party to the execution and/or recording Commitment Letters or the Sale Leaseback Agreement of same by Tenantwhich Buyer or its Affiliate becomes aware, and if such breach or repudiation would reasonably be expected to prevent or delay the Closing Date. Without limiting Buyer’s other obligations under this Section 5.21, if a Financing Failure Event occurs, Buyer shall accompany such notice with a true copy (i) promptly notify Seller of such Trust Deed Financing Failure Event and the Note secured thereby; and
reasons therefor, (oii) All insurance proceeds arising in consultation with Seller, use its reasonable best efforts to obtain alternative financing from damage the same or destruction of alternative financing sources (the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be “Alternative Financing”), in an amount which exceeds seventy-five percent (75%) of sufficient to pay the fair market value of the Improvements Purchase Price at the time Closing and consummate the loan is entered intotransactions contemplated by this Agreement and otherwise in accordance with Section 5.21(a), as promptly as practicable following the occurrence of such event, and (iii) when obtained, provide Seller with a copy of, a replacement financing commitment, if any, in accordance with Section 5.21(a)(i) that provides for such Alternative Financing, if applicable. Notwithstanding anything herein to the contrary, in no event shall Buyer (in its sole discretion) be required to (i) pay any fees in the aggregate in excess of those contemplated by the Debt Commitment Letter or (ii) agree to terms that are outside of, or less favorable than any terms set forth in the Debt Commitment Letter or the Fee Letter (including any “market flex” provision therein). Seller agrees to provide all reasonable cooperation and assistance reasonably requested by Buyer in connection with the arrangement of any such Alternative Financing on a basis consistent Section 5.22 hereof (as though such Alternative Financing were the Debt Financing and any commitment letter thereunder were the Debt Commitment Letter).
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Darden Restaurants Inc), Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Financing. Tenant may seek (a) Prior to the Closing, Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or desirable to arrange and consummate the Financing on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated by the Commitment Letter and the Fee Letter (including any “market flex” provisions that are contained in the Fee Letter), including using reasonable best efforts to (i) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Parent or Merger Sub set forth in the Commitment Letter and the Fee Letter (including definitive agreements related thereto) that are within its control, including the payment of any commitment, engagement or placement fees required as a condition to the Financing, (ii) maintain in effect the Commitment Letter (subject to Parent’s right to amend, modify, supplement, restate, assign, substitute or replace the Commitment Letter in accordance herewith), comply with its obligations pursuant to the Commitment Letter, diligently enforce their rights under the Commitment Letter and, with respect to the Commitment Letter, negotiate and enter into definitive agreements with respect thereto on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated in the Commitment Letter and the Fee Letter (including any “market flex” provisions contained in the Fee Letter), (iii) consummate the Financing at or prior to the Closing, (iv) ensure the participation by a Representative of Parent and Merger Sub in, and assistance by Representatives of Parent and Merger Sub with, the preparation of rating agency presentations, meetings with ratings agencies and meetings with prospective lenders and (v) comply with Parent’s obligations under the Commitment Letter and the Fee Letter. If funds in the amounts and on the terms set forth in a Commitment Letter become unavailable to Parent or Merger Sub on the terms and conditions (including any “market flex” provisions contained in the Fee Letter) contemplated in the Commitment Letter and the Fee Letter (other than as a result of the Company’s breach of this Agreement, or if the Company’s failure to perform would be the sole cause of the conditions set forth in Section 7.01 or Section 7.02 not to be satisfied), Parent and Merger Sub shall promptly notify the Company of such fact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, when added to any Financing remaining available to Parent, sufficient to consummate the Transactions, including, for the avoidance of doubt, payment of the Required Amount and that would not (i) include any conditions precedent to the Financing that are not contained in the Commitment Letter and the Fee Letter that would reasonably be expected to (1) make the funding of the Financing (or the satisfaction of the conditions to obtaining the Financing) less likely to occur or (2) materially delay or prevent the Closing and (ii) otherwise reasonably be expected to materially delay or prevent the Closing; provided that Parent and Merger Sub shall not be required to accept any Alternative Financing having terms and conditions (including “market flex” provisions) less favorable to Parent and Merger Sub than those in the Commitment Letter and the Fee Letter; provided, further, that if Parent and Merger Sub proceed with such Alternative Financing, Parent and Merger Sub shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Section 6.09(a) with respect to the Financing, and all references in this Agreement to the “Financing”, “Commitment Letter” and “Fee Letter” (and other like terms in this Agreement) shall be deemed to also include such Alternative Financing, as applicable. In the event all conditions applicable to the Commitment Letter have been satisfied or waived, Parent shall use its reasonable best efforts to cause the Persons providing the Financing to fund such Financing required to consummate the Transactions on the Closing Date.
(b) Upon written request of the Company, Parent shall keep the Company apprised (as promptly as possible, and in any event within forty-eight (48) hours) of material developments relating to the Financing. Parent shall give the Company prompt written notice of any material adverse change with respect to the Financing. Without limiting the generality of the foregoing, Parent shall give the Company prompt written notice and, in any event, within forty-eight (48) hours, (i) of any breach, default, termination or repudiation by any party to the Commitment Letter or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware, (ii) of the receipt of (A) any written notice or (B) other written communication, in each case from any Lender Related Party with respect to any (1) actual breach, default, termination or repudiation by any party to the Commitment Letter or definitive agreements related to the Financing of any provisions of the Commitment Letter or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware or (2) material dispute or disagreement between or among any parties to the Commitment Letter or definitive agreements of which Parent becomes aware related to the Financing with respect to the obligation to fund any of the Financing or the amount of the Financing to be funded at the Closing and (iii) if at any time for any reason Parent believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letter or definitive agreements related to the Financing such that it would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount. As soon as reasonably practicable, but in any event within forty-eight (48) hours of the date that the Company delivers to Parent a loan written request, Parent shall provide any information reasonably requested by the Company relating to finance any circumstance referred to in clause (i), (ii) or (iii) of the Improvements and immediately preceding sentence. Parent shall not replace, amend, supplement, modify or waive the Commitment Letter or any provision of any fee letter relating to refinance the Improvements from time to time during Commitment Letter (it being understood that the Term. For such purpose onlyexistence or exercise of “market flex” provisions contained in the Fee Letter shall not constitute a replacement, Tenant shall have amendment, supplement, modification or waiver of the rightCommitment Letter), with Landlordwithout the Company’s prior written approval, which shall consent (such consent not to be unreasonably withheld, or conditioned or delayed) if such replacement, amendment, supplement, modification or waiver (x) reduces the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing or similar fees) such that Parent would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount, (y) amends the conditions precedent to the Financing in a manner that adds additional conditions precedent to the Financing, or otherwise expands, amends or modifies any of the conditions precedent to the availability of the Financing, in each case, in a manner that would reasonably be expected to (1) make the funding of the Financing (or the satisfaction of the conditions to obtaining the Financing) less likely to occur or (2) materially delay or prevent the Closing or (z) adversely impacts the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter (as it may be replaced, amended, supplemented, modified or waived in accordance with this Section 6.09); provided that Parent and Merger Sub may replace, amend, supplement or modify the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (or titles with respect to such entities) that have not executed the Commitment Letter as of the date of this Agreement (it being understood that the aggregate commitments of the lenders party to the Commitment Letter prior to such amendment, supplement or modification may be reduced in the amount of such additional party’s commitments) (provided that, except as provided for in the Commitment Letter with respect to Additional Committing Lenders (as defined in the Commitment Letter), no such addition shall relieve the original Committed Lenders of their obligations under the Commitment Letter prior to the funding of the Financing). Parent shall promptly provide to the Company true and complete copies of any commitment letter and fee letter (which, in the case of a fee letter, may redact Permissible Redacted Terms) associated with a replacement Financing or Alternative Financing as well as any amendment, supplement, modification or waiver of any Commitment Letter or any related fee letter (which, in the case of a fee letter, may redact Permissible Redacted Terms) that is permitted hereunder.
(c) Prior to the Closing, the Company shall use its reasonable best efforts to provide, and to cause the Company Subsidiaries and its and their respective Representatives to use their reasonable best efforts to provide, to assign Parent and Merger Sub, in each case at Parent’s sole cost and expense (subject to the expense reimbursement provision in the last sentence of this Section 6.09(c)), such cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the Financing or any customary high-yield non-convertible bonds or equity being issued in lieu of all or part any portion of Tenantthe Debt Financing, including by:
(i) assisting in preparation for and participating (including causing the Company’s interest under this Leaseand Company Subsidiaries’ management teams with appropriate seniority and expertise to participate) in a reasonable number of investor and lender meetings (including a reasonable and limited number of customary one on one meetings and calls that are requested in advance with or by the parties acting as lead arrangers, as security bookrunners or agents for, and prospective lenders and purchasers of, the Financing), lender due diligence presentations, drafting sessions, road shows and presentations, including sessions with rating agencies in connection with the Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Financing at reasonable times and locations mutually agreed, and assisting Parent in obtaining ratings in connection with the Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Financing;
(ii) assisting Parent, Merger Sub and the Lender Related Parties with the preparation by Parent, Merger Sub and the Lender Related Parties of materials for rating agency presentations, lender presentations, high-yield road show presentations and offering memoranda, bridge teasers, private placement memoranda, bank information memoranda and similar marketing documents required in connection with the Financing or any customary high-yield non-convertible bonds or equity in lieu of all or any portion of the Financing; provided that (x) the Company’s obligation to provide information for such materials shall be limited to information about the Company and the Company Subsidiaries and (y) Parent and Merger Sub shall be solely responsible for the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage pro forma financial information (collectively, the “Trust DeedDebt Marketing Materials”). Landlord’s written approval or denial shall be provided to Tenant within twenty , including (20A) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s furnishing business and financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond projections with respect to the request within twenty Company on a consolidated basis reasonably requested by Parent or Merger Sub and (20B) Business Daysfurnishing records, data or other information with respect to the request shall be deemed approved. In Company and the event Tenant assigns Company Subsidiaries necessary to support any statistical information or claims relating to the Company and the Company Subsidiaries appearing in the Debt Marketing Materials;
(iii) executing and delivering as of (but not prior to) the Closing any pledge and security documents, other definitive financing documents for the Financing or any customary high-yield non-convertible bonds or equity in lieu of all or any portion of Tenant’s Interest the Financing, or other certificates or documents and backup therefor and for legal opinions as may be reasonably requested by Parent (including any certificate or other document reasonably requested by Parent as backup for legal opinions to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement be provided in connection with the Leasehold Mortgagee;
transactions contemplated by Section 6.12) and otherwise reasonably facilitating the granting of guarantees and the pledging of collateral; provided that (bA) The Landlord none of the documents or certificates shall not be required to sign any Trust Deed or executed and/or delivered except in connection with the NoteClosing, (B) the effectiveness thereof shall be conditioned upon, or otherwise become obligated thereunder;
operative after, the occurrence of the Closing (c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date case of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession each of the leasehold interest shall be deemed extended foregoing clauses (A) and (B), other than the execution of (1) the authorization letters set forth in Section 6.09(c)(vi) below, (2) the representation letters required by the number Company’s auditors in connection with the delivery of days of delay occasioned by judicial restriction “comfort letters” set forth in Section 6.09(c)(ix) below, (3) the prepayment, termination or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
redemption notices set forth in Section 6.09(c)(v) below, (k4) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements customary solicitation agent agreement in connection with any Improvementsconsent solicitation or change of control tender offer in respect of the 2021 Notes, including but not limited the 2023 Notes or the 2025 Notes set forth in Section 6.12, (5) a customary dealer manager agreement in connection with any tender offer, exchange offer or change of control tender offer in respect of the 2021 Notes, the 2023 Notes or the 2025 Notes set forth in Section 6.12, (6) any certificate or other document reasonably requested by Parent as backup for legal opinions to construction loansbe provided in connection with the transactions contemplated by Section 6.12, long term loans (7) customary ancillary agreements and refinancing permitted closing deliverables for any consent solicitation, tender offer, exchange offer, change of control tender offer, optional redemption, satisfaction and discharge or defeasance in respect of the 2021 Notes, the 2023 Notes or the 2025 Notes set forth in Section 6.12, (8) any approvals or authorizations by the terms board of directors (or equivalent bodies) of the Company or any Company Subsidiary in connection with any consent solicitation, tender offer, exchange offer, change of control tender offer, optional redemption, satisfaction and discharge, defeasance or designation of restricted subsidiaries in respect of the 2021 Notes, the 2023 Notes or the 2025 Notes set forth in Section 6.12 and (9) any documentation reasonably requested by the trustee under the 2023 Indenture or the 20▇▇ ▇▇▇▇▇▇▇▇▇ ▇n connection with any designation of restricted subsidiaries set forth in Section 6.12) and (C) except to the extent subject to the expense reimbursement provision in the last sentence of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord Section 6.09(c), no liability shall be notified by imposed on the Leasehold Mortgagee within thirty (30) days Company or any Company Subsidiary or any of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) their respective officers or employees involved prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924Closing Date;
(niv) Tenant shall give Landlord written notice of providing Parent and the Lender Related Parties promptly, and in any Trust Deed event no later than three (3) Business Days prior to the execution and/or recording of same by TenantClosing Date, with all documentation and shall accompany such notice with a true copy of such Trust Deed other information about the Company and the Note secured thereby; andCompany Subsidiaries as is reasonably required and which any lender, provider or arranger of any Financing or any customary high-yield non-convertible bonds issued in lieu of all or any portion of the Financing (or any person similarly situated) has reasonably requested at least ten (10) Business Days prior to the Closing Date in connection with such Financing or any customary high-yield non-convertible bonds in lieu of all or any portion of the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the CDD Rule;
(ov) All insurance proceeds arising from damage delivering notices of prepayment, termination or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at redemption within the time the loan is entered into.periods
Appears in 2 contracts
Sources: Merger Agreement (Wesco International Inc), Merger Agreement (Wesco International Inc)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into The Purchaser shall use reasonable best efforts to take, or cause to be taken, all appropriate action, do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be reasonably required, to arrange and consummate the Financing as soon as practicable after the date of this Agreement and, in any event, on or prior to the Closing on the terms and subject only to the conditions contained in the Equity Financing Commitment and the Loan Financing Documentation, including (i) maintaining (x) the Equity Financing Commitment and negotiating and executing definitive agreements with respect thereto on the terms and conditions contained therein, which terms and conditions shall not expand upon the conditions to Closing or other contingencies to the funding, and (y) the Loan Financing Documentation (the “Financing Agreements”); (ii) using reasonable best efforts to satisfy on a Lender Recognition Agreement timely basis all conditions in the Equity Financing Commitment and the Loan Financing Documentation that are within the Purchaser’s control to be satisfied and using reasonable best efforts to cause the financial institutions providing the Loan Financing to fund the Loan Financing; (iii) fully enforcing its rights under the Equity Financing Commitment and (iv) drawing upon and consummating the Loan Financing, if available to be drawn upon and consummated. The Purchaser shall provide Sellers with a copy of the Leasehold Mortgagee;Financing Agreements as soon as practicable, but no later than two (2) business days, after their execution.
(b) The Landlord Purchaser shall not be required agree to sign or permit any Trust Deed material amendment, supplement or other modification of, or waive any of its rights under, the Equity Financing Commitment or the NoteFinancing Agreements without the Sellers’ prior written consent, not to be unreasonably withheld, except that the Purchaser may amend, supplement or otherwise become obligated thereunder;modify any of the foregoing if such amendment, supplement or other modification would not impair or delay the funding of the Loan Financing or the Closing.
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon If any portion of the Landlord’s fee title Loan Financing becomes unavailable on the terms and conditions contained in the Premises or their reversionary interest Loan Financing Documentation, the Purchaser shall promptly notify the Sellers, and the Purchaser shall use its commercially reasonable efforts to obtain, as promptly as practicable following the occurrence of such event, commitments on terms that will enable the Purchaser to consummate the transactions contemplated by this Agreement and that are not less favorable in the Improvements;aggregate (as determined by the Purchaser in its reasonable judgment) to the Purchaser than those contained in the Loan Financing Documentation. The Purchaser shall deliver to the Sellers complete and correct copies of all amendments, supplements, other modifications or agreements pursuant to which any amended, supplemented, modified or replacement commitments shall provide the Purchaser with any portion of the Financing; provided that the Purchaser may redact from any such copies the fee amounts and pricing information payable to their Financing sources.
(d) Any interest in Each of the Premises which the Trust Deed establishes in a trusteeSellers shall, and shall cause the Company and its Subsidiaries to, and shall use its commercially reasonable efforts to cause its and the Company and its Subsidiaries independent accountants, legal counsel and other advisors to, provide such reasonable cooperation in connection with the arrangement of the Loan Financing as may be reasonably requested by the Purchaser or their Financing sources, including (i) reasonably facilitating the pledging of the Shares in connection with the Loan Financing, and (ii) using commercially reasonable efforts to obtain accountants’ “comfort letters”, accountants’ consent letters, legal opinions, and other customary documentation as reasonably requested by the Purchaser; provided that none of the Sellers nor any lien which it creates, of their Affiliates shall expire on be required to pay any commitment or before other fee or incur any other liability in connection with the date of expiration of this Lease;Financing.
(e) The Trust Deed imposes no financial obligations Purchaser shall keep the Sellers reasonably informed on a timely basis of any material developments relating to the Landlord, contingent or otherwise;Financing.
(f) The Trust Deed shall neither subordinate nor affect Sellers understand that a significant portion of the Landlord’s right Purchase Price will be financed with proceeds of the Loan Financing, which will be provided by third party sources. The Sellers accordingly acknowledge that the obligations of the Purchaser under this Section 6.03 do not require the Purchaser or any of its Affiliates to convey, mortgage, encumber or otherwise hypothecate in any way provide the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements Loan Financing or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee Backstop Debt Financing themselves if such third party sources fail to provide the Loan Financing or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, Backstop Debt Financing or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing guarantee that such proceedings third party sources will provide the Loan Financing or negotiations are the Backstop Debt Financing but only requires that the Purchaser use its reasonable best efforts to be commenced, arrange and Landlord shall have consummate the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionLoan Financing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Tops Markets Ii Corp), Purchase and Sale Agreement (Tops Markets Ii Corp)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into Parent shall use reasonable best efforts, and shall cause each of its Subsidiaries (including New Wildlife) to use reasonable best efforts, to take, or cause to be taken, all appropriate actions, and do, or cause to be done, all things necessary, proper or advisable to obtain funds sufficient to fund, together with all other available sources of funding to Parent and New Wildlife, the Financing Amounts on or prior to the date on which the Mergers are required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, Parent shall use reasonable best efforts, and shall cause each of its Subsidiaries (including New Wildlife) to use reasonable best efforts, to take, or cause to be taken, all appropriate actions and do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the proceeds of the Financing on the terms and subject only to the conditions (including any “flex” provisions set forth in the Redacted Fee Letter) described in the Debt Commitment Letter on a Lender Recognition Agreement timely basis but in any event prior to the date on which the Mergers are required to be consummated pursuant to the terms hereof, including by (i) subject to Section 5.22(d), maintaining in effect and complying with the Leasehold Mortgagee;Debt Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Financing (the “Definitive Agreements”) on the terms and subject only to conditions contained in the Debt Commitment Letter (including, as necessary, any “flex” provisions set forth in the Redacted Fee Letter) and without any Prohibited Modification, (iii) satisfying on a timely basis all conditions in the Debt Commitment Letter and the Definitive Agreements that are within the control of Parent and New Wildlife and complying with its obligations thereunder (or, if deemed necessary or advisable by Parent or New Wildlife, seek the waiver of conditions applicable to New Wildlife contained in such Debt Commitment Letter or such Definitive Agreements), (iv) subject to Section 5.22(d), consummating the Financing at or prior to the Closing Date, (v) [reserved], (vi) accepting (and complying with) to the fullest extent any and all “flex” provisions contemplated by the Debt Commitment Letter and the Financing to the extent that such “flex” provisions are exercised in accordance with the terms thereof, and (vii) complying with its covenants and other obligations under the Debt Commitment Letter and the Definitive Agreements. Subject to Section 5.22(d), Parent and New Wildlife shall not, and Parent and New Wildlife shall not permit any of their respective controlled Affiliates to, (x) breach any provision in the Debt Commitment Letter and/or the Definitive Agreements that would result in a failure of any condition to funding on the Closing Date contained in the Debt Commitment Letter and/or the Definitive Agreements to be satisfied or (y) take any action that would directly result in the termination of the Debt Commitment Letter.
(b) The Landlord shall not be required to sign Neither Parent nor any Trust Deed or the Note, or otherwise become obligated thereunder;
of its Subsidiaries (cincluding New Wildlife) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;the Company: (i) permit, consent to or agree to any amendment, replacement, supplement or modification to, or any waiver of, any provision or remedy under, the Debt Commitment Letter (it being understood that the exercise of any “flex” provisions contained in the Redacted Fee Letter shall not be deemed an amendment, replacement, supplement, modification or waiver) if such amendment, replacement, supplement, modification or waiver could be reasonably likely to (A) add new (or adversely modify any existing) conditions to the availability or consummation of all or any portion of the Financing, (B) reduce (or could have the effect of reducing) the aggregate principal amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount) to an amount less than, together with all other available sources of funding to Parent and New Wildlife, the Financing Amounts, (C) subject to Section 5.22(d), adversely affect the ability of Parent and New Wildlife to enforce their respective rights against other parties to the Debt Commitment Letter or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, or (D) expand, amend or modify any provision of the Debt Commitment Letter in a manner that could otherwise reasonably be expected to prevent, impede or delay the consummation of the Mergers and the Contemplated Transactions (the effects described in clauses (A) through (D), collectively, the “Prohibited Modifications”); or (ii) subject to Section 5.22(d), terminate the Debt Commitment Letter or any Definitive Agreement. Parent shall reasonably promptly (and in any event, within three (3) Business Days) deliver to the Company true and complete copies of any such amendment, replacement, supplement, termination, modification, consent or waiver to or under the Debt Commitment Letter or any Definitive Agreement reasonably promptly upon the execution thereof.
(mc) The Trust Deed In the event that any portion of the Financing becomes unavailable, regardless of the reason therefor, Parent shall (i) reasonably promptly (and in any event, within three (3) Business Days) notify the Company in writing of such unavailability and the reason therefor and (ii) use reasonable best efforts, and cause each of its Subsidiaries (including New Wildlife) to use their reasonable best efforts, to arrange and obtain, as reasonably promptly as practicable following the occurrence of such event, alternative financing from the same or alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing and all other available sources of funding to Parent and New Wildlife to pay the Financing Amounts and which does not include any Prohibited Modifications or conditions to the consummation of such Alternative Financing that are more onerous to Parent and New Wildlife than the conditions set forth in the Debt Commitment Letter as of the date of this Agreement (for the avoidance of doubt, any Alternative Financing in the form of equity shall be subject to the prior written consent of the Company in all respects (which may be granted or withheld in the Company’s sole and absolute discretion). Parent shall keep the Company reasonably informed on a current basis of the status of its efforts to consummate the Financing, including any Alternative Financing. Parent shall promptly (and in any event, within three (3) Business Days) deliver to the Company true and complete copies of all contracts or agreements (including any Redacted Fee Letter related thereto) pursuant to which any such alternative source shall have committed to provide thatany portion of the Financing after execution and delivery thereof.
(d) Notwithstanding anything contained herein to the contrary, it is understood and agreed that Parent or New Wildlife may elect, by providing written notice to the Company in accordance with the definition of Alternative Debt Financing Event (such election, an “Alternative Debt Financing Election”), to replace or supplement all or any portion of the Debt Commitment Letter and the Financing with alternative debt financing commitments (“Alternative Debt Commitments”) from other financing sources that provide financing for purposes of financing the Contemplated Transactions, so long as: (1) any commitments of the Debt Financing Sources under the Debt Commitment Letter delivered on or before the date hereof are only terminated or reduced simultaneously with, or following, the entry into such Alternative Debt Commitments and the commitments under such Alternative Debt Commitments are equal to or greater than the corresponding amount of commitments terminated or reduced under the Debt Commitment Letter delivered with the signing of this Agreement and (2) the replacement or supplement with the Alternative Debt Commitments (A) would not reasonably be expected (x) to adversely affect the ability of New Wildlife to timely consummate the Contemplated Transactions or (y) to delay the consummation of the Contemplated Transactions beyond the date on which Closing would otherwise be required to occur hereunder, (B) does not include any Prohibited Modifications or otherwise amend, supplement, modify or waive the conditions to the Financing in a manner adverse to the Company, in each case, without the prior written consent of the Company, and (C) would not reasonably be expected to delay the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur. Parent shall promptly (and in any event, within three (3) Business Days) deliver correct and complete copies of all contracts or agreements (including any Redacted Fee Letter related thereto) with respect to the Alternative Debt Commitments to the Company after execution and delivery thereof, together with correct and complete copies of any Redacted Fee Letter relating thereto. Notwithstanding anything herein to the contrary, (1) Parent and New Wildlife will use reasonable best efforts, and cause each of their respective Subsidiaries to use their respective reasonable best efforts, not to materially increase the burden of cooperation imposed on the Company and its Subsidiaries from additional requests for information and documents made by the sources of such Alternative Debt Commitments as compared to the information and document requests of the type made by (or on behalf of) the Debt Financing Sources in respect of the Debt Commitment Letter delivered on the date hereof, and (2) in no event shall the satisfaction of any cooperation covenants with respect to the Alternative Debt Commitments by the Company, its subsidiaries or any of their respective Affiliates be a condition to any of Parent’s or New Wildlife’s obligations under this Agreement to the extent any requests in connection therewith are not requested by Parent or New Wildlife in writing at least three (3) Business Days prior to the institution Closing Date.
(e) Parent shall provide the Company with reasonably prompt written notice (and, in any event, within three (3) Business Days) (i) of any proceedings actual or threatened (in writing) material breach, default (or any event that, with or without notice, lapse of time or both, could reasonably be expected to foreclose give rise to any breach or default), cancellation, termination or repudiation by any party to the Trust Deed Debt Commitment Letter or any Definitive Agreement and a copy of negotiations any written notice or other written communication from any Debt Financing Source or other financing source with respect to accept an assignment in lieu any actual or threatened breach, default, cancellation, termination or repudiation by any party to the Debt Commitment Letter or any Definitive Agreement of any provision thereof, (ii) of the foreclosure occurrence of an event or development that could reasonably be expected to have an adverse impact on the ability of Parent or New Wildlife to obtain all or any portion of the Trust DeedFinancing contemplated by the Debt Commitment Letter in an amount sufficient, when taken together with all other available sources of funding to Parent and New Wildlife, to pay the holder Financing Amounts, (iii) of the receipt by Parent or beneficiary thereof shall notify Landlord in writing that such proceedings New Wildlife of any notice or negotiations are other communication from any Person with respect to any material dispute or disagreement between or among parties to the Debt Commitment Letter or the Definitive Agreements with respect to the obligation to fund the Financing or the amount of the Financing to be commencedfunded at the Closing (but excluding ordinary course negotiations), and Landlord shall have the right, but not the obligation, within sixty (60iv) days after receiving of such notice if for any reason Parent believes in good faith that (x) there is (or there is likely to purchase the Trust Deed and the indebtedness which it secures at be) a purchase price equal material dispute or disagreement between or among parties to the full Debt Commitment Letter or the definitive documents related to the Financing with respect to the obligation to fund the Financing or the amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee Financing to be funded at the Closing (but excluding ordinary course negotiations) or (y) there is a reasonable likelihood that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall Financing will not be available for restoration thereof any reason on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter or any Definitive Agreements, in each case, in an amount sufficient, when taken together with the available portion of the Financing and all other available sources of funding to Parent and New Wildlife, to pay the extent Tenant is obligated under Financing Amounts. As soon as reasonably practicable, Parent shall provide any information reasonably requested by the terms of this Lease Company relating to restore any circumstance referred to in the Improvements following such damage or destructionimmediately preceding sentence.
(pf) No loan may be Notwithstanding the foregoing or anything else in an amount which exceeds seventy-five percent (75%) this Agreement to the contrary, compliance by Parent with this Section 5.22 shall not relieve Parent of its obligations to consummate the Contemplated Transactions whether or not the Financing or any Alternative Financing is available. Parent acknowledges and agrees that the receipt or availability of any debt, equity or other financing to it or New Wildlife is not a condition to the consummation of the fair market value Contemplated Transactions, and that if no such financing is obtained, Parent and New Wildlife will continue to be obligated, subject only to the satisfaction or waiver of the Improvements at conditions set forth in Section 6, to consummate the time Contemplated Transactions.
(g) To the loan is entered intoextent Parent or New Wildlife obtains Alternative Financing, makes an Alternative Debt Financing Election pursuant to an Alternative Debt Financing Event or amends, replaces, supplements, terminates, modifies or waives any of the Financing, in each case pursuant to this Section 5.22 and without any Prohibited Modification, references to the “Financing,” “Debt Financing Sources,” and “Debt Commitment Letter,” “Definitive Agreements” (and other like terms in this Agreement) shall be deemed to refer to such Alternative Financing or Alternative Debt Commitments, the commitments thereunder and the agreements with respect thereto or the Financing as so amended, restated, replaced, supplemented, terminated, modified or waived (other than with respect to representations in this Agreement made by Parent that are made solely as of the date hereof), respectively.
Appears in 2 contracts
Sources: Arrangement Agreement and Plan of Merger (Real Brokerage Inc), Arrangement Agreement and Plan of Merger (RE/MAX Holdings, Inc.)
Financing. Tenant may seek (a) Purchaser shall and shall cause its Affiliates to obtain a loan take, or cause to finance the Improvements be taken, all actions, and to refinance do, or cause to be done all things necessary, proper or advisable to consummate the Improvements from time to time during Financing or any Substitute Financing (as defined below) as promptly as possible following the Term. For such purpose onlydate hereof, Tenant shall have including, (i) complying with and maintaining in effect the rightCommitment Letter, (ii) negotiating and entering into definitive agreements with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond respect to the request within twenty Financing including the terms and conditions contained in the Commitment Letter so that such agreements are in effect no later than the Closing, (20iii) Business Dayssatisfying as soon as possible and on a timely basis all the conditions to the Financing and the definitive agreements related thereto, (iv) accepting to the request shall fullest extent all “market flex” contemplated by the Commitment Letter (or any fee letter relating thereto) and (v) enforcing its rights under the Commitment Letter in the event of a breach by the Financing Parties that could reasonably be deemed approvedexpected to impede or delay Closing. In the event Tenant assigns that all conditions to the Commitment Letter have been satisfied or, upon funding shall be satisfied, Purchaser and its Affiliates shall use their best efforts to cause the Financing Parties to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby (including by taking enforcement action to cause the Financing Parties to fund such Financing). Purchaser shall, after obtaining Knowledge thereof, give Company prompt written notice of any (A) breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) by a Financing Party or any party to any definitive document related to the Financing, (B) actual or threatened withdrawal, repudiation or termination of the Financing by the Financing Parties, (C) material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing, (D) amendment or modification of, or waiver under, the Commitment Letter or any related fee letters or (E) change, circumstance or event which causes Purchaser or Merger Sub to believe that it will not be able to timely obtain all or any portion of Tenant’s Interest the Financing on the terms, in the manner or from the Financing Parties or sources contemplated by the definitive documents related to secure the Financing. Purchaser shall keep Company informed on a reasonably current basis of the status of its efforts to arrange the Financing contemplated by the Commitment Letter, including providing copies of all definitive agreements related to the Financing. Other than as permitted pursuant to the immediately following sentence, neither Purchaser nor its Affiliates shall materially amend, modify, terminate, assign or agree to any waiver under the Commitment Letter or any related fee letters without the prior written approval of Company that would (I) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) or (II) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the Financing, or otherwise expand, amend or modify any other provision of the Commitment Letter or the related fee letters in a manner that would reasonably be expected to (1) delay or prevent or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (2) adversely impact the ability of Purchaser or Merger Sub, as applicable, to enforce its rights against the Financing Parties or any other parties to the Commitment Letter or the definitive agreements with respect thereto. Notwithstanding the foregoing, Purchaser shall be permitted to reduce the amount of Financing by an amount equal to the net cash proceeds received by Purchaser from any offering of (i) debt or equity securities issued by Purchaser or (ii) syndicated term loans of or guaranteed by Purchaser or any of its Subsidiaries, in each case, after the date hereof and prior to the Closing Date (provided that the funding of the Merger Consideration is described as a use of proceeds in any prospectus or term loan agreement, as applicable, related to such offering) (“Offering Proceed”), provided that Purchaser shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of Purchaser and Merger Sub, including cash on hand and marketable securities of Purchaser, Company and their respective Subsidiaries that are committed to fund the Merger Consideration, to consummate the Merger and the transactions contemplated by this Agreement, and provided, further, that such reduction shall not (A) expand upon or amend in any way that is adverse to the Company the conditions precedent to the Financing as set forth in the Commitment Letter or (B) prevent or materially impede or materially delay the availability of the Financing and/or the consummation of the Merger and the transactions contemplated by this Agreement. In the event that new commitment letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Commitment Letter permitted under pursuant to this Section 14.25.14, then such new commitment letters shall be deemed to be a part of the “Financing” and deemed to be the “Commitment Letter” for all purposes of this Agreement. Purchaser shall promptly deliver to Company copies of any termination, amendment, modification, waiver or replacement of the Commitment Letter or any fee letters. If funds in the amounts set forth in the Commitment Letter, or any portion thereof, become unavailable, or it becomes reasonably likely that such funds may become unavailable to Purchaser on the terms and conditions set forth therein, in each case, other than as a result of receipt of Offering Proceeds, Purchaser shall, and shall cause its Affiliates, as promptly as practicable following the occurrence of such event to (x) notify Company in writing thereof, (y) obtain substitute financing (on terms and conditions that are not materially less favorable to Purchaser and Merger Sub, taken as a whole, than the terms and conditions as set forth in the Commitment Letter, taking into account any “market flex” provisions thereof) sufficient to enable Purchaser to consummate the Merger and the other transactions contemplated hereby in accordance with its terms (the “Substitute Financing”) and (z) obtain a new financing commitment letter that provides for such Substitute Financing and, promptly after execution thereof, deliver to Company true, complete and correct copies of the new commitment letter and the related fee letters (in redacted form reasonably satisfactory to the Persons providing such Substitute Financing removing only the fee information, expense information and successful syndication information) and related definitive financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing shall apply:
(a) Landlord will be deemed to be a part of the “Financing” and any commitment letter for such Substitute Financing shall be deemed the “Commitment Letter” for all purposes of this Agreement. Notwithstanding the foregoing, neither Purchaser nor any of its Affiliates shall enter into into, or agree to enter into, any new commitments for any financing that would result in a Lender Recognition Agreement with reduction of the Leasehold Mortgagee;commitments set forth in the Commitment Letter unless the conditions precedent of such new commitments are not materially less favorable to Purchaser and its Affiliates than the conditions precedent set forth in the Commitment Letter as in effect on the date hereof.
(b) The Landlord Notwithstanding anything contained in this Agreement to the contrary, Purchaser expressly acknowledges and agrees that Purchaser’s and Merger Sub’s obligations hereunder are not conditioned in any manner upon Purchaser or Merger Sub obtaining the Financing, any Substitute Financing or any other financing. Purchaser’s breach of any of its representations or warranties in Section 3.1(f), Purchaser’s or Merger Sub’s breach of any of their respective obligations in this Section 5.14, the failure, for any reason, of Purchaser and Merger Sub to have sufficient cash available on the Closing Date to pay the Merger Consideration in accordance with Article II hereof (and any other amounts that may have to be paid pursuant to Section 1.11) and/or the failure to so pay the Merger Consideration on the Closing Date, in each case, shall constitute a willful and intentional breach of this Agreement by Purchaser and Merger Sub.
(c) For the period from the date hereof and the Closing, Company shall provide and shall use its commercially reasonable efforts to cause each of its Representatives, including legal, tax, regulatory and accounting, to provide, all cooperation reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Company and its Subsidiaries), including (i) as promptly as reasonably practicable providing information (financial or otherwise) relating to Company to the Persons providing the Financing (the “Financing Parties”) (including information to be used in the preparation of an information package regarding the business, operations, financial projections and prospects of Purchaser and Company customary or reasonably necessary for the completion of such Financing) to the extent reasonably requested by Purchaser to assist in preparation of customary offering or information documents to be used for the completion of the Financing, (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the lead arrangers for such Financing), presentations, road shows, drafting sessions, due diligence sessions (including accounting) and sessions with the rating agencies at times and at locations reasonably acceptable to Company, (iii) reasonably assisting in the preparation of (A) any customary offering documents, bank information memoranda, prospectuses and similar documents, which contain, to the extent reasonably available, all financial statements and other data required to be included therein, and all other data (including selected financial data) that the SEC would require in a registered offering or that would be necessary for an investment bank to receive customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with a registered offering and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts for the Financing, (v) providing customary authorization letters to the Financing Parties authorizing the distribution of information to prospective lenders and containing a representation to the Financing Parties that the public side versions of such documents, if any, do not include material non-public information about Company or their respective Affiliates or securities, (vi) providing audited financial statements of Company covering the three (3) fiscal years of Company ended at least seventy-five (75) days prior to the Closing Date, unaudited financial statements (excluding footnotes) for any fiscal quarter of Company ended after the date of the most recent audited financial statements and at least forty-five (45) days prior to the Closing Date, in each case to the extent then available, and (vii) cooperating reasonably with Financing Parties’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of Company; provided that until the Closing occurs, Company shall (A) have no liability or any obligation under any agreement or document related to the Financing or (B) not be required to sign incur any Trust Deed other liability in connection with the Financing unless simultaneously reimbursed or reasonably satisfactorily indemnified by Purchaser. Parent shall, promptly upon request by Company, reimburse Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Company or any of its Subsidiaries in connection with the Notecooperation of Company and its Subsidiaries contemplated by this Section 5.14 (without duplication of any reimbursement pursuant to the preceding sentence). Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless Company and its Subsidiaries and their respective representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments and penalties suffered or otherwise become obligated thereunder;
(c) No such lien, charge incurred in connection with any Financing or encumbrance shall constitute a lien other securities offering of Parent and/or its Subsidiaries or encumbrance upon the Landlord’s fee title any assistance or activities provided in the Premises or their reversionary interest in the Improvements;connection therewith.
(d) Any interest Purchaser shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts that become due and payable prior to the Closing Date under the Commitment Letter or the related fee letters, including without limitation the fees described in the Premises which the Trust Deed establishes in a trusteefee letter dated July 9, 2012 among Credit Suisse AG, Credit Suisse Securities (USA) LLC and any lien which it creates, shall expire on or before the date of expiration of this Lease;Purchaser.
(e) The Trust Deed imposes no financial obligations on Purchaser shall not permit the Landlordborrowing availability under that certain credit agreement, contingent dated as of September 30, 2010, among Purchaser, Bank of America N.A. and certain other parties thereto (as amended, restated, supplemented, extended or otherwise;
(freplaced from time to time, the “Existing Credit Agreement”) The Trust Deed to be less than $1,300,000,000 at any time prior to the Closing. Purchaser shall neither subordinate nor affect take all actions reasonably necessary to ensure that the Landlord’s right Existing Credit Agreement remains in full force and effect and shall not enter into or permit any amendments, waivers or other modifications to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall Existing Credit Agreement that would reasonably be subject likely to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance cause the revolving loans under this Lease by the Existing Credit Agreement to be unavailable to Purchaser on the Closing Date or (ii) result in the borrowing availability under the Existing Credit Agreement being less than $1,300,000,000 at any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, on or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution Closing Date; provided that, notwithstanding the foregoing, Purchaser shall be permitted to reduce such borrowing availability by an amount equal to any Offering Proceeds received by Purchaser in excess of any proceedings those required to foreclose reduce the Trust Deed or of negotiations to accept an assignment in lieu amount of the foreclosure Financing commitments to zero, provided that Purchaser shall not reduce such borrowing availability to an amount below the amount that is required, together with the financial resources of Purchaser and Merger Sub, including cash on hand and marketable securities of Purchaser, Company and their respective Subsidiaries that are committed to fund the Trust DeedMerger Consideration, to consummate the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed Merger and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted transactions contemplated by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionAgreement.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Wellpoint, Inc), Merger Agreement (Amerigroup Corp)
Financing. Tenant (a) Buyer expressly acknowledges and agrees that Buyer’s obligations under this Agreement are not conditioned in any manner whatsoever upon Buyer obtaining any financing. Buyer shall use (and shall cause each of its Affiliates to use) its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or desirable to arrange and consummate the Debt Financing on the terms described in the Debt Commitment Letter (including any “market flex” provisions set forth in the Fee Letter), including using (and causing each of its Affiliates to use) its reasonable best efforts to (i) comply with its obligations under the Debt Commitment Letter and satisfy on a timely basis (or obtain a waiver of) all terms, conditions, representations and warranties applicable to Buyer and its Affiliates set forth in the Debt Commitment Letter; (ii) maintain in effect the Debt Commitment Letter on the terms and conditions contained therein (including, to the extent the same are exercised, any “market flex” provisions set forth in the Fee Letter) until the transactions contemplated by this Agreement are consummated (it being understood that the Debt Commitment Letter may seek be replaced or amended as provided below); (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter (including, to the extent the same are exercised, any “market flex” provisions set forth in the Fee Letter); (iv) enforce its rights under the Debt Commitment Letter in the event of a breach by the Debt Financing Sources or other parties thereto to the extent such breach results in a failure or material delay to consummate the transactions under this Agreement; (v) cause its senior management as well as appropriate Representatives of Buyer and its Affiliates, if applicable, to cooperate with the marketing and/or syndications efforts of the Debt Financing Sources, (vi) timely prepare the necessary offering circulars, private placement memoranda, or other offering documents or Marketing Materials with respect to the Debt Financing; (vii) commence the marketing and/or syndication activities contemplated by the Debt Commitment Letter as promptly as practicable; and (viii) subject to clause (iv) of this sentence, satisfy or cause to be waived on a timely basis all conditions to funding the Debt Financing that are applicable to Buyer in the Debt Commitment Letter on or prior to Closing; provided, however, that if funds in the amounts and on the terms set forth in the Debt Commitment Letter become unavailable to Buyer on the terms and conditions set forth therein, Buyer shall (x) notify Seller in writing of such event, (y) use reasonable best efforts to obtain Alternative Financing as promptly as possible in amounts and otherwise on terms and conditions in the aggregate, not materially less favorable, taken as a whole, to Buyer than as set forth in the Debt Commitment Letter (taking into account any “market flex” provisions related thereto), and (z) use reasonable best efforts to obtain a loan new debt commitment letter that provides for such Alternative Financing and promptly deliver a true, correct and complete copy thereof and any fee letter related thereto (provided, that provisions in such fee letter may be redacted in a customary manner (i.e., redacted as to finance pricing, economic market flex and other provisions; provided that the Improvements redacted pricing, market flex and other economic provisions set forth therein shall not affect availability or conditionality of the Debt Financing at Closing)) to refinance Seller; provided further, that if Buyer proceeds with Alternative Financing, it shall be subject to the Improvements from time same obligations as set forth in this Section 5.12 with respect to time during the TermDebt Financing.
(b) Buyer shall keep Seller apprised of all material developments relating to the Debt Financing. For such purpose onlyBuyer shall promptly (and in any event within two Business Days) notify Seller of (i) the expiration or termination of the Debt Commitment Letter, Tenant shall have (ii) any refusal by the rightDebt Financing Sources to provide, or any stated intent by the Debt Financing Sources to refuse to provide, the full Debt Financing contemplated by the Debt Commitment Letter, (iii) any breach or default (or any change, circumstance, fact occurrence or event that, with Landlordor without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by Buyer or, to the knowledge of the Buyer, any other party to the Debt Commitment Letter or definitive document that may cause Buyer to no longer be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms described therein (and that Buyer will not be able to obtain acceptable Alternative Financing), (iv) any change, circumstance, fact occurrence or event of which Buyer becomes aware that, with or without notice, lapse of time or both, would reasonably be expected to cause Buyer to no longer be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms described therein (and that Buyer will not be able to obtain acceptable Alternative Financing), or (v) receipt of any written notice or other written communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Debt Commitment Letter or any definitive document related to the Debt Financing or (B) material dispute or disagreement between or among any parties to the Debt Commitment Letter or any definitive document that would cause Buyer to no longer be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms described therein (and that Buyer will not be able to obtain acceptable Alternative Financing).
(c) Buyer shall not replace, amend or waive the Debt Commitment Letter or the Fee Letter without Seller’s prior written approvalconsent if such replacement, which amendment or waiver (i) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) unless Buyer delivers to Seller evidence in form and substance reasonably acceptable to Seller that Buyer shall not be unreasonably withheldotherwise have available cash sufficient to consummate the Closing, conditioned (ii) imposes new or delayedadditional conditions, or otherwise expands any of the conditions, to assign the receipt of Debt Financing or (iii) effects any other amendment, modification or waiver that would reasonably be expected to prevent or materially delay or impede the consummation of the transactions contemplated by this Agreement. Buyer shall provide to Seller copies of any commitment letter associated with a replacement Debt Financing or Alternative Financing as well as any amendment or waiver of any debt commitment letter (including the Debt Commitment Letter) that is permitted hereunder.
(d) From the date hereof until the Closing Date, Seller shall, and shall cause the Company Group members (and its and their respective Representatives) to, at Buyer’s sole cost and expense, provide such cooperation reasonably requested by Buyer or any of its Affiliates or Representatives in connection with the arrangement of Debt Financing as required by the terms of the Debt Commitment Letter, including Commercially Reasonable Efforts to: (i) furnish Buyer with documentation and other information of Seller and the Company Group members as required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case, that has been reasonably requested in writing by Buyer not less than 5 Business Days prior to the Closing Date, (ii) facilitating instruments of discharge with respect to the Indebtedness of the Company Group required to be released prior to the Closing Date in order to transfer the Interests to Buyer free and clear of all Liens (other than Liens imposed by state and federal securities laws), pursuant to Section 2.01 on the Closing Date, (iii) facilitating the pledging of collateral to the extent required by the terms of the Debt Commitment Letter and reasonably requested by Buyer (in each case, subject to and only effective upon the occurrence of the Closing) and assist with the production of factual information required in connection with the preparation of any credit agreement, pledge and security documents, perfection certificates, mortgages, deeds of trust, hedging agreements, legal opinions reasonably requested (including on behalf of the Debt Financing Sources), legal opinion support certificates or other definitive financing documents or other documents related to the Debt Financing (including schedules, insurance certificates, and evidence of corporate authority) as may be reasonably requested by the Buyer, (iv) participation by senior management of the Seller and the Company Group in, and assistance with, (1) the preparation of rating agency presentations, (2) meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors and (3) the preparation of confidential information memoranda, investor presentations, lender presentations, roadshow presentations and similar customary documents as may be reasonably requested by Buyer or any Lender, in each case, with respect to information relating to the Seller and the Company Group in connection with customary marketing efforts of Buyer for all or part any portion of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage the Debt Financing (collectively, the “Trust DeedMarketing Material”). Landlord, (v) provide reasonable and customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information relating to the Seller and the Company Group to prospective lenders (including with respect to the presence or absence of material non-public information and accuracy of the information contained therein) and subject to customary confidentiality provisions, (vi) cause the Company’s written approval auditors to deliver customary consents and comfort letters (including “negative assurance” and “change period” comfort) with respect to the financial information relating to the Company and its subsidiaries as reasonably requested by the Debt Financing Sources and to attend accounting due diligence sessions and to provide consents for the use of their reports in any materials or denial disclosures relating to the Debt Financing, (vii) provide reasonably requested information relating to the compliance by the Seller and the Company Group with all applicable government laws and regulations, (viii) furnish Buyer with the financial statements and other information described in Section 5.14 and (ix) allow the usual and customary use of the logos of the Seller and the Company Group in connection with any debt financing (provided such logos shall be provided used solely in a manner that is not intended or reasonably likely to Tenant within twenty (20) Business Days harm, disparage or otherwise adversely affect the Seller’s or any Company Group member’s reputation or goodwill), subject to Seller’s prior approval of Tenant’s written requestsuch materials; provided, which however, that nothing herein shall contain require Seller, the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Company Group members or any of their respective Representatives or Affiliates to take any action that would be effective prior to the request within twenty (20) Business DaysClosing Date or to the extent it would, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenantin Seller’s Interest to secure a loan permitted under this Section 14.2reasonable judgment, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement interfere unreasonably with the Leasehold Mortgagee;
business or operations of Seller or its Affiliates (b) The Landlord shall not be required to sign any Trust Deed or including the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;Company Group members).
(e) The Trust Deed imposes no Neither Seller nor any of its Affiliates (including the Company Group members) shall be required to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing that would be effective prior to the Closing Date or would be treated as a Company Transaction Expense. None of Seller, its Affiliates or their respective Representatives shall be required to (i) execute or enter into or perform any Contract contemplated by the Debt Commitment Letter that is not contingent upon the Closing Date or that would be effective prior to the Closing Date (other than as contemplated under Section 5.12(d)), (ii) adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained or take any corporate actions prior to the Closing Date to permit the consummation of the Debt Financing, (iii) provide in connection with the Debt Financing any information the disclosure of which is prohibited or restricted under Applicable Law or is legally privileged, (iv) take any action which would result in either Seller, its Affiliates or any of their respective Representatives incurring any liability with respect to the matters relating to the Debt Financing or cause any director, officer or employee of Seller, its Affiliates or their respective Representatives to incur any personal liability in connection with the Debt Financing, or (v) other than with respect to current or historical financial obligations information required to be furnished pursuant to Section 5.12(d), provide (A) pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information, (B) any description of all or any component of the Debt Financing (including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”), (C) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing, or (D) any solvency certificate or similar certification or representation (which items (A) through (D) shall be the sole responsibility of Buyer). None of Seller, the Company Group members, or any of their respective Representatives or Affiliates shall be required to make any representation, warranties or certifications in connection with the Debt Financing as to which, after the use of Commercially Reasonable Efforts to cause such representation, warranty or certification to be true, such Person has in its good faith determined that such representation, warranty or certification is not true. Seller shall be given a reasonable opportunity to review and comment on any financing documents and review any materials that are to be presented during any meetings conducted in connection with the LandlordDebt Financing, contingent and Buyer shall give due consideration to all reasonable additions, deletions or otherwise;changes suggested thereto by Seller.
(f) The Trust Deed Buyer acknowledges and agrees that Seller will not, except as set forth in this Agreement, have any liability to any Person under or in connection with, the arrangement of the Debt Financing that Buyer may raise in connection with the transactions contemplated by this Agreement. Buyer shall neither subordinate nor affect promptly, upon request by Seller (including following a valid termination of this Agreement in accordance with Article 10), reimburse Seller for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by Seller and the Landlord’s right Company Group members in connection with the cooperation of Seller and its Affiliates contemplated by this Section 5.12 and shall indemnify and hold harmless Seller, the Company Group members, and their respective Representatives from and against any and all Damages suffered or incurred by any of them of any type in connection with the arrangement of the Debt Financing, except to conveythe extent such Damages arise from or in connection with gross negligence or Fraud by Seller, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;Company Group members of their respective Representatives.
(g) Except Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 8.02(b), as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had it applies to Seller’s obligations under this Lease;
(h) The Trust Deed shall be subject to all conditionsSection 5.12, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights satisfied unless Seller willfully fails to perform its obligations under this Lease, Section 5.12 and such willful failure to perform has been the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu primary cause of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but Debt Financing not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionbeing obtained.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Fortress Transportation & Infrastructure Investors LLC), Membership Interest Purchase Agreement (United States Steel Corp)
Financing. Tenant may seek (a) Each of Parent and Merger Sub shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to take, or shall use reasonable best efforts to cause to be taken, all actions and to do, or cause to be done, all things necessary to obtain the Debt Financing including (i) using reasonable best efforts to (A) maintain in effect the Debt Commitment Letter and in all material respects comply with all of their respective obligations thereunder and (B) negotiate, enter into and deliver the definitive agreements with respect thereto on the terms and conditions not less favorable in the aggregate, to Parent than those contained in the Debt Commitment Letter (including, as necessary, the “market flex” provisions contained in any related fee letter) by the Closing Date, and (ii) using reasonable best efforts to satisfy (or if determined advisable by Parent, obtain the waiver of) on a loan timely basis all conditions to finance obtaining the Improvements Debt Financing within Parent’s (or its Subsidiary’s) control and to refinance comply with all of its obligations pursuant to the Improvements Debt Commitment Letters or other definitive agreements related thereto to the extent the failure to comply with such obligations would adversely impact the timing of the Closing or the availability at the Closing of sufficient aggregate proceeds of the Debt Financing to consummate the transactions contemplated by this Agreement. In the event that all conditions to funding the commitments contained in the Debt Commitment Letters have been satisfied, each of Parent and Merger Sub shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to cause the Financing Sources to fund the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date. Parent shall use its reasonable best efforts to enforce all of its rights under the Debt Commitment Letters. Parent and/or Merger Sub shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts under the Debt Commitment Letters.
(b) In the event that any portion of the Debt Financing becomes unavailable and such portion is necessary to consummate the transactions contemplated by this Agreement (except in accordance with the express terms set forth in the Debt Commitment Letters, including as a result of the entry into definitive agreements for a “Qualifying Term Loan Facility” under the applicable Debt Commitment Letters with commitments subject to substantially the same conditions as those set forth in the applicable Debt Commitment Letters or unless concurrently replaced on a dollar-for-dollar basis by commitments subject to substantially the same conditions as those set forth in the applicable Debt Commitment Letters from time other Financing Sources or from proceeds of other sources of financing or cash), Parent and Merger Sub shall (i) use their reasonable best efforts to time during obtain, as promptly as practicable following the Termoccurrence of such event, alternative debt financing for any such portion from alternative debt sources on terms and conditions, taken as a whole, no less favorable to Parent and Merger Sub than the terms and conditions set forth in the Debt Commitment Letter (taking into account any “market flex” provisions thereof) and in an amount that will still enable Parent and Merger Sub to consummate the transactions contemplated by this Agreement (“Alternative Financing”), and (ii) promptly notify the Company of such unavailability and the reason therefor. For If obtained, Parent shall deliver to the Company true and complete copies of all commitment letters and other definitive agreements (including redacted copies of fee letters, removing only fee amounts, the rates and amounts included in the “market flex” provisions and certain other economic terms (none of which could adversely affect the amounts, availability, timing or conditionality of the Debt Financing)) pursuant to which any such purpose only, Tenant alternative source shall have committed to provide Parent or the rightSurviving Corporation with Alternative Financing.
(c) Parent and Merger Sub shall not, with Landlordwithout the Company’s prior written approval, which shall consent (not to be unreasonably withheld, conditioned or delayed), permit any amendment, modification to, or any waiver of any provision or remedy under, any Debt Commitment Letter or any definitive agreement related thereto unless the terms of such Debt Commitment Letter or definitive agreement related thereto, in each case as so amended, modified or waived, are substantially similar to assign all those in such Debt Commitment Letter or part of Tenant’s interest under this Leasedefinitive agreement related thereto, as security prior to any Institutional Lender giving effect to such amendment, modification or waiver (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written requestother than economic terms, which shall contain be as good as or better for Parent and Merger Sub than those in such Debt Commitment Letter or definitive agreement relating thereto prior to giving effect to such amendment, modification or waiver); provided that in the information regarding case of amendments or modifications or waivers of any Debt Commitment Letter or any definitive agreement relating thereto, such amendment, modification or waiver would not reasonably be expected to (i) (A) add additional conditions precedent that would adversely affect the assignee’s financial strengthability or likelihood of Parent or Merger Sub timely consummating the transactions contemplated by this Agreement or otherwise adversely affect the ability or likelihood of Parent or Merger Sub timely consummating the transactions contemplated by this Agreement or (B) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing materially less likely to occur, reputation (ii) reduce the aggregate amount of the Debt Financing or (iii) materially and experience delineated in Section 12.1. If Landlord does not respond adversely affect the ability of Parent to enforce its rights against other parties to the request within twenty (20) Business DaysDebt Commitment Letters or the definitive agreements relating thereto, it being understood and agreed that in any event, Parent may amend any of the request shall be deemed approved. In the event Tenant assigns all Debt Commitment Letters or any portion definitive agreement relating thereto to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed such Debt Commitment Letters as of Tenant’s Interest such time and consent to secure a loan permitted the assignment of lending commitments under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required Debt Commitment Letters to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;other lenders.
(d) Any interest Parent shall provide the Company with prompt written notice of the receipt of any notice or other communication from any Financing Source with respect to such Financing Source’s failure or anticipated failure to fund its commitments under any Debt Commitment Letter or definitive agreement in connection therewith in a manner that would reasonably be expected to render it unable to consummate the transactions contemplated by this Agreement. Parent shall keep the Company reasonably informed on a reasonably current basis of the status of Parent’s and its Subsidiaries’ efforts to consummate the Debt Financing, including providing copies of any amendment, modification or replacement of the Debt Commitment Letter (provided that any fee letter may be redacted to remove fee amounts, the rates and amounts included in the Premises “market flex” provisions and certain other economic terms (none of which could adversely affect the Trust Deed establishes amounts, availability, timing or conditionality of the Debt Financing)). Parent shall give the Company prompt notice of any (i) material breach or material default by any party to the Debt Commitment Letters or the definitive agreements related thereto of which Parent obtains knowledge, (ii) actual or, to the knowledge of Parent, threatened in a trusteewriting withdrawal, and repudiation, or termination of any lien which it createsof the Debt Commitment Letters or such definitive agreements, shall expire on or before (iii) material dispute or disagreement between or among any parties to any of the date Debt Commitment Letters or such definitive agreements with respect to the obligations to fund the Debt Financing or the amount of expiration of this Lease;the Debt Financing to be funded at Closing.
(e) The Trust Deed imposes no financial Notwithstanding anything contained in this Agreement to the contrary, Parent expressly acknowledges and agrees that Parent’s and Merger Sub’s obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate hereunder are not conditioned in any way the Landlord’s fee manner upon Parent or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire Merger Sub obtaining any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionfinancing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Financing. Tenant may seek (a) Parent and Acquisition Sub shall use reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to consummate and obtain the Debt Financing, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter and negotiate and enter into the Definitive Financing Agreements on the terms and conditions contained in the Commitment Letter and deliver to the Company a loan copy of any Definitive Financing Agreements to finance the Improvements extent executed prior to the Effective Time promptly after execution thereof; (ii) satisfy on a timely basis (or obtain waiver of) all conditions under the Commitment Letter and, if applicable, the Definitive Financing Agreements applicable to Parent and Acquisition Sub; and (iii) as soon as reasonably practicable, consummate, or cause the consummation of, the Debt Financing, including, in the event of a breach by the other parties thereto that impedes or delays or would reasonably be expected to refinance impede or delay the Improvements Acceptance Time or the Effective Time, by making written demands and reasonable requests of such parties to cure such breach or otherwise provide reasonable assurances with respect to such party’s obligations thereunder. If all conditions to the lenders’ obligations under the Commitment Letter or Definitive Financing Agreements, as applicable, have been satisfied, Parent and Acquisition Sub shall use their reasonable best efforts to cause the lenders providing such Debt Financing to fund, at the Acceptance Time, the Financing required to satisfy all of Parent’s and Acquisition Sub’s obligations at the Acceptance Time (provided, however, that nothing herein shall require Parent or Acquisition Sub to take any enforcement action, including through litigation, to cause such lenders to fund such Debt Financing). Parent and Acquisition Sub shall have the right from time to time during the Term. For such purpose onlyto amend (including, Tenant shall have the rightby adding or replacing lenders, with Landlord’s prior written approvallead arrangers, which shall not be unreasonably withheldbookrunners, conditioned syndication agents or delayedsimilar entities), to assign all replace, supplement or part otherwise modify, or waive any of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyits rights under, the “Trust Deed”). Landlord’s written approval Commitment Letter and/or substitute other debt or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns equity financing for all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though Debt Financing from the same had been performed by Tenant;
(j) The time available and/or alternative financing sources; provided, that any such amendment, replacement, supplement or other modification to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession waiver of any provision of the leasehold interest Commitment Letter that amends the Debt Financing and/or substitution of all or any portion of the Debt Financing shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leasenot, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of the Company (such consent not to be unreasonably withheld, delayed or conditioned): (A) reduce the aggregate amount of the Debt Financing; (B) impose new or additional conditions precedent or contingencies to the Debt Financing as set forth in the Commitment Letter (unless such conditions precedent or contingencies to the financing would not be: (1) materially adverse to Parent and Acquisition Sub or the Company; and (2) reasonably expected to prevent or impede or delay the Acceptance Time or the Effective Time); or (C) prevent or impede or delay the Acceptance Time or the Effective Time. Parent shall keep the Company reasonably informed of the status of its efforts to arrange the Debt Financing; provided, that Parent shall be under no obligation to disclose any information that is subject to an attorney-client or similar privilege or protection; provided, however, that Parent shall give notice to the Company of the fact that it is withholding such information or documents and thereafter Parent and the Company shall use their respective commercially reasonable efforts to cause such information to be provided in a manner that would not reasonably be expected to waive the applicable privilege or protection. In the event any portion of the Debt Financing becomes unavailable or Parent or Acquisition Sub becomes aware of any event or circumstance that would reasonably be expected to make any portion of the Debt Financing unavailable, in each Leasehold Mortgagee;
case, on the terms and conditions contemplated in the Commitment Letter, Parent and Acquisition Sub shall promptly notify the Company and shall use their reasonable best efforts to arrange and obtain from the same and/or alternative financing sources alternative financing upon terms and conditions not materially less favorable, taken as a whole, to Parent, Acquisition Sub and, with respect to conditions or contingencies to such alternative financing, the Company than those set forth in the Commitment Letter, in an amount sufficient, together with any available cash resources, to consummate the Merger, the Offer and the other Contemplated Transactions as promptly as practicable following the occurrence of such event. Parent and Acquisition Sub shall deliver to the Company true and complete copies of all agreements pursuant to any such source of alternative financing shall have committed to provide Parent and Acquisition Sub with any portion of the Debt Financing promptly after execution thereof. Parent and Acquisition Sub shall give the Company prompt notice: (mx) The Trust Deed shall provide thatof any breach or potential breach threatened in writing by any party to the Commitment Letter or of any condition which may not be satisfied, in each case, of which Parent or Acquisition Sub becomes aware or any termination of the Commitment Letter or the Definitive Financing Agreement that occurs prior to the institution funding thereunder; (y) the receipt of any proceedings written notice or other written communication from any other party thereto with respect to foreclose the Trust Deed any breach, default, termination or of negotiations repudiation by any party to accept an assignment in lieu any of the foreclosure Commitment Letter or Definitive Financing Agreement related to the Financing of any provisions of the Trust DeedCommitment Letters or the Definitive Financing Agreement, if applicable, related to the Debt Financing that occurs prior to the funding thereunder; and (z) if at any time for any reason Parent or Acquisition Sub 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 contemplated by the Commitment Letter or the Definitive Financing Agreements, if applicable. As soon as reasonably practicable, following written request by the Company, Parent and Acquisition Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause “(x),” “(y)” or “(z)” of the immediately preceding sentence; provided that they need not provide any information that is subject to contractual confidentiality restrictions, privileged or that is requested for purposes of litigation; provided, however, that, Parent shall: (I) give reasonable notice to the Company of the fact that either it or Acquisition Sub is not providing such information pursuant to this Section 6.12(a); (II) inform the Company with sufficient detail of the reason for not providing such information; and (III) with respect to reasons relating to contractual confidentiality restrictions and privilege, use, and cause Acquisition Sub to use, commercially reasonable efforts to cause the information that is subject to such restriction or privilege to be provided in a manner that would not reasonably be expected to violate such restriction or privilege. On the sixth business day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) immediately prior to the scheduled Expiration Date, Parent shall make a determination as to whether the Funding Condition is reasonably expected to be satisfied on the scheduled Expiration Date and, if Parent, acting reasonably and in good faith, determines that the Funding Condition is reasonably expected to be satisfied on the scheduled Expiration Date, Parent and Acquisition Sub shall waive such condition prior to 11:59 p.m., Eastern Time, on such sixth business day.
(b) Prior to the Acceptance Time, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commencedCompany shall, and Landlord shall have cause each of its Subsidiaries and the rightRepresentatives of the Acquired Corporations to provide, at Parent’s sole expense, cooperation in connection with the arrangement of any Financing as may be reasonably requested by Parent or Acquisition Sub which shall include, but not be limited to, the obligation, within sixty following:
(60i) days after receiving of such notice to purchase causing the Trust Deed Company’s senior management and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiaryfinance department, and applicable statutory costs using commercially reasonable efforts to cause its other Representatives to participate in a reasonable number of meetings, presentations (including marketing (or similar presentations) and allowances if any foreclosure proceedings shall have commenced. All loan agreements lender and other investor presentations), road shows, sessions with rating agencies and due diligence sessions (including accounting due diligence) in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924Financing;
(nii) Tenant shall give Landlord written notice assisting in the preparation of customary bank information memoranda and bank syndication materials, rating agency presentations, offering documents, private placement memoranda, prospectuses and similar documents as may be requested or required in connection with any Financing, including the syndication thereof, but in each case, solely with respect to the information relating to the Company and its Subsidiaries;
(iii) providing Parent reasonable access at reasonable times all other documentation and information, including all customary financial and other information relating to the Company and its Subsidiaries, and other items, in each case, contemplated by the Commitment Letter and the Definitive Financing Agreements or as otherwise reasonably requested by Parent in connection with any Financing;
(iv) providing reasonable access at reasonable times to properties, books and records of the Acquired Corporations as reasonably requested by Parent or the sources of any Trust Deed prior Financing, including permitting such persons to perform customary “due diligence” in connection with any Financing;
(v) using commercially reasonable efforts to cause the Company’s independent public accountants to cooperate with Parent’s commercially reasonable efforts to obtain any Financing, including by participating in drafting sessions and accounting due diligence sessions and by promptly providing, upon request: (A) consent to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy incorporation of such Trust Deed auditors’ reports in SEC filings and offering memoranda which include any of the Acquired Corporations’ financial information; and (B) customary comfort letters (including “negative assurance” comfort) upon completion of customary procedures;
(vi) furnishing such information and arranging for delivery of any collateral to be physically pledged, in each case, to the extent reasonably necessary to facilitate the pledging of collateral and perfection of liens and the Note secured therebyproviding of guarantees, in each case, at the Effective Time; and
(ovii) furnishing all documentation and other information required by any Governmental Body in connection with any Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT ACT; provided, that: (1) such requested assistance and cooperation does not unreasonably interfere with the ongoing operations of the Acquired Corporations; (2) none of the Acquired Corporations shall be required to pay any fees (including commitment or other similar fees) or incur any other liability or expense in connection with the Financing (or any replacement thereof) prior to the Effective Time; (3) no incurrence of Indebtedness or other obligation of any Acquired Corporation under any Financing shall be effective until the Effective Time; (4) no Acquired Corporation shall be required to provide access to or disclose information where the Company reasonably determines that such access or disclosure would jeopardize the attorney-client privilege of an Acquired Corporation or contravene any Legal Requirement or any contract to which an Acquired Corporation is a party; provided that, the Company shall give notice to Parent of the fact that it is withholding such information or documents and thereafter the Company and Parent shall use their respective commercially reasonable efforts to cause such information to be provided in a manner that would not reasonably be expected to waive the applicable privilege or protection; (5) no Acquired Corporation shall be required to: (A) take any action that will conflict with or violate such Acquired Corporation’s organizational documents or any Legal Requirement or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any material Contract to which an Acquired Corporation is a party; or (B) issue any bank information memoranda, high-yield offering prospectuses or memoranda required in relation to any Financing (and any such bank information memoranda, high-yield offering prospectuses or memoranda shall reflect the Surviving Corporation and/or its Subsidiaries as the obligors on such Financing); and (6) no Acquired Corporation shall be required to enter into or approve any financing or purchase agreement for any Financing prior to the Effective Time. Parent shall, reasonably promptly upon request by the Company, reimburse the Company for all out of pocket costs and expenses incurred by any Acquired Corporation in connection with such cooperation and assistance. Parent shall indemnify and hold harmless the Acquired Corporations and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them prior to the Effective Time in connection with any Financing or the arrangement of any Financing and any information utilized in connection therewith (other than historical information relating to the Acquired Corporations); except in the event such termination is determined to have arisen out of or resulted from the fraud, willful misconduct, gross negligence or intentional misrepresentation of the Acquired Corporations or their respective Representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction. Notwithstanding anything to the contrary contained in this Agreement, the Financing is and will remain the sole responsibility of Parent and Acquisition Sub and none of Acquired Corporations or any of their respective Representatives: (x) shall be required to waive or amend any terms of this Agreement or agree to pay any commitment or other fees or reimburse any expenses prior to the Effective Time, or give any indemnities that are not contingent on the Effective Time; or (y) shall have any liability or incur any losses, damages or penalties with respect thereto.
(c) If a Commitment Letter is amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing in accordance with Section 6.12(a), or if Parent substitutes other debt or equity financing for all or a portion of the Debt Financing, each of Parent and the Company shall comply with its covenants in Section 6.12(a) and Section 6.12(b) with respect to the Commitment Letter as so amended, replaced, supplemented or otherwise modified and with respect to such other financing to the same extent that Parent and the Company would have been obligated to comply with respect to the Debt Financing.
(d) The Company hereby consents to the use of the trademarks, service marks and logos of the Acquired Corporations in connection with any Financing.
(e) All insurance proceeds arising from damage non-public or destruction otherwise confidential information regarding the Company obtained by Parent or its Representatives or any other Person pursuant to this Section 6.12 shall be governed by the provisions of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under Confidentiality Agreement; provided, that notwithstanding the terms of this Lease the Confidentiality Agreement, upon notice to restore the Improvements following Company, Parent may provide such damage information to potential sources of capital and to rating agencies and prospective lenders and investors during syndication or destructionplacement of any Financing (including any alternative financing to be entered into pursuant to Section 6.12(a)) subject to customary confidentiality arrangements with such Persons regarding such information (it being acknowledged by the Company that the confidentiality provisions set forth in the Commitment Letter are customary and acceptable) or as otherwise permitted by the Confidentiality Agreement.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Riverbed Technology, Inc.), Merger Agreement (Opnet Technologies Inc)
Financing. Tenant may seek (a) Each of Parent and Merger Sub shall use reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions, and to refinance do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Improvements from Debt Financing on the terms and conditions described in the Debt Letters, no later than the time at which the Closing is required to time during occur pursuant to Section 2.2), including using their reasonable best efforts to (i) (A) maintain in effect the Term. For such purpose onlyDebt Letters and comply with all of their respective obligations thereunder to the extent that the failure to comply would adversely impact the amount or timing of Debt Financing (taking into account the expected timing of the Marketing Period) or the availability of the Debt Financing at Closing, Tenant shall (B) negotiate, enter into and, assuming all conditions to Closing set forth in Article VIII hereof have been satisfied, deliver definitive agreements with respect to the rightDebt Financing reflecting the terms and conditions contained in the Debt Letters or on other terms that (1) are acceptable to Parent and Merger Sub in their sole discretion, with Landlord’s prior written approval, which shall (2) would not reasonably be expected to delay (taking into account the expected timing of the Marketing Period) or adversely affect the ability of Parent and Merger Sub to consummate the transactions contemplated hereby and (3) would otherwise not be unreasonably withheldprohibited by Section 7.5(c), conditioned or delayed, so that such agreements are in effect no later than the time at which the Closing is required to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant occur pursuant to a promissory note Section 2.2 and a trust deed or mortgage (collectively, C) enforce their rights under the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Debt Letters to the request within twenty extent that the failure to enforce would adversely impact the amount or timing of Debt Financing (20taking into account the expected timing of the Marketing Period) Business Days, or the request shall be deemed approvedavailability of the Debt Financing at Closing and (ii) satisfy on a timely basis (taking into account the expected timing of the Marketing Period) (or obtain the waiver of) all the conditions to the Debt Financing and the definitive agreements related thereto that are applicable to Parent and Merger Sub and in their control. In the event Tenant assigns that (x) all conditions set forth in Article VIII have been satisfied or waived or, upon funding shall be satisfied or waived, and (y) the conditions to the Debt Financing have been satisfied or waived, or, upon funding shall be satisfied or waived, Parent and Merger Sub shall use their reasonable best efforts to cause the Persons providing the Debt Financing (the “Debt Financing Parties”) to fund the Debt Financing at Closing.
(b) Parent shall keep the Company reasonably informed on a reasonably current basis of any material developments concerning the status of the Debt Financing which could reasonably be expected to impact the availability of the Debt Financing and upon the Company’s reasonable written request, provide the Company with copies of executed material definitive agreements related to the Debt Financing. Without limiting the foregoing, Parent shall promptly (and in no event less than one Business Day) after obtaining knowledge thereof, give the Company written notice of any (i) breach or default by Parent, its Affiliates, any Debt Financing Party or any other party to the Debt Letters or any definitive document related to the Debt Financing (or any event or circumstance, with or without notice, lapse of time, or both, would give rise to any breach or default) if such breach or default could reasonably be expect to result in a delay of, or in any way limit, the availability of the Debt Financing, (ii) receipt by Parent of any written notice or other written communication from any Debt Financing Parties with respect to threatened or actual withdrawal, repudiation, expiration, intention not to fund under or termination of the Debt Letters or the Debt Financing, (iii) receipt by Parent of any written notice or other written communication from any Debt Financing Parties with respect to material dispute or disagreement between or among any parties to the Debt Letters or any definitive document related to the Debt Financing (other than ordinary course negotiations) with respect to the obligation to provide the Debt Financing or the amount of the Debt Financing to be funded at Closing, in each case, that could reasonably be expected to make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or delay the availability of the Debt Financing or (iv) if for any reason Parent in good faith believes that there is a material possibility that it will not be able to obtain all or any portion of Tenantthe Debt Financing needed to consummate the Merger at the Effective Time; provided, that in no event will Parent be under any obligation to provide any information shared among Parent, Merger Sub and their professional advisors in connection with matters contemplated by the foregoing that is subject to attorney-client or other privilege if Parent and Merger Sub shall have used their reasonable best efforts to disclose such information in a way that would not waive such privilege.
(c) Parent may amend, supplement, modify, terminate, assign or agree to any waiver under the Debt Letters without the prior written approval of the Company, provided that Parent shall not, without Company’s Interest prior written consent, permit any amendment, modification, assignment, termination or material waiver to secure be made to, or consent to or agree to any waiver of, any provision of or remedy under the Debt Letters which would (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount (except as set forth in any “market flex” provisions contemplated by the fee letter)) to an amount less than the amount required to consummate the transactions contemplated hereby or (B) impose new or additional conditions to the Debt Financing or otherwise expand, amend or modify any of the conditions to the Debt Financing, in each case, in a loan manner that would or would reasonably be expected to (I) delay, prevent or make less likely the consummation of the Merger or the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) at the Effective Time (taking into account the expected timing of the Marketing Period) (it being understood and agreed that, in any event, Parent may amend the Debt Letters to add additional Financing Sources), (II) adversely impact the ability of Parent to enforce its rights against the Debt Financing Parties or any other parties to the Debt Letters or the definitive agreements with respect thereto or (III) adversely affect the ability of Parent to timely consummate the Merger and the other transactions contemplated hereby. In the event that new commitment letters and/or fee letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Debt Letters permitted under pursuant to this Section 14.27.5, then such new commitment letters and/or fee letters shall be deemed to be a part of the following “Debt Financing” and deemed to be the “Debt Letters” for all purposes of this Agreement. Parent shall apply:promptly (and in any event no later than one Business Day) deliver to the Company true, correct and complete copies of any termination, amendment, modification or replacement of the Debt Letters.
(ad) Landlord will enter If funds in the amounts set forth in the Debt Letters, or any portion thereof, become unavailable on the terms and conditions (including any “market flex” provisions applicable thereto) contemplated in the Debt Letters, Parent and Merger Sub shall, as promptly as practicable following the occurrence of such event (taking into a Lender Recognition Agreement account the Marketing Period), (x) notify the Company in writing thereof, (y) use their respective reasonable best efforts to obtain substitute financing, including from alternative sources, in an amount sufficient, when added to the portion of the Debt Financing that is available and any cash of the Company and its Subsidiaries on hand at the Closing Date and the other cash available to Parent and its Affiliates in the Escrow Account, to enable Parent to consummate the payment of the Maximum Cash Amount pursuant to the Merger and the other transactions contemplated hereby in accordance with the Leasehold Mortgagee;
terms hereof (bthe “Substitute Financing”) and (z) use their respective reasonable best efforts to obtain new financing commitment letter(s) that provide for such Substitute Financing and, promptly after execution thereof (and, in any event, no later than one Business Day), deliver to the Company true, complete and correct copies of the new commitment letter(s) and the related fee letters; provided that in no event shall Parent and Merger Sub be obligated to accept or pursue any Substitute Financing if it is materially less favorable to Parent in any respect than the Debt Financing contemplated by the Debt Letters. The Landlord provisions of this Section 7.5 shall be applicable to the Substitute Financing and upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the “Debt Financing” and any commitment letter and fee letter for such Substitute Financing shall be deemed the “Debt Letters”, as applicable, for all purposes of this Agreement. Parent shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts that become due and payable under the Debt Letters. Notwithstanding anything to the contrary contained herein, in no event shall Parent and Merger Sub be required pursuant to this Agreement to agree to pay to the Debt Financing Parties providing the Debt Financing any additional fees or to increase any interest rates or original issue discounts applicable to the Debt Financing, except as expressly required pursuant to the Debt Letters in existence as of the date hereof. The Company acknowledges and agrees that Parent and Merger Sub shall not be required to sign any Trust Deed or consummate the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon Debt Financing until the Landlord’s fee title in final day of the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;Marketing Period.
(e) The Trust Deed imposes no financial Notwithstanding anything contained in this Agreement to the contrary, Parent and Merger Sub expressly acknowledge and agree that neither Parent’s nor Merger Sub’s obligations on to consummate the Landlordtransactions contemplated by this Agreement are in any manner conditioned upon Parent or Merger Sub obtaining the Debt Financing, contingent any Substitute Financing or otherwise;any other financing.
(f) The Trust Deed Prior to the Closing, the Company and its Subsidiaries shall, and shall neither subordinate nor affect use their reasonable best efforts to cause their respective Representatives, including legal and accounting, to provide, as promptly as reasonably practicable, to Parent and Merger Sub all cooperation as may be reasonably requested by Parent and Merger Sub in connection with arranging, obtaining and syndicating the Landlord’s right to conveyDebt Financing (including, mortgagefor the avoidance of doubt, encumber or otherwise hypothecate in any way consummating the Landlord’s fee or leasehold title offering of the “Notes” as contemplated by the Debt Commitment Letter (respectivelythe “New Notes”)) or reversionary interest and causing the conditions in the Improvements or the Premises;
(g) Except as otherwise provided hereinDebt Letters to be satisfied, no Leasehold Mortgagee or anyone claiming byincluding, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions the limitations set forth in the definition of this Lease and to all rights of Landlord hereunder;Required Information:
(i) The Landlord will accept performance under this Lease preparing and furnishing Parent, Merger Sub and their Financing Sources as promptly as practicable all Required Information and all other financial and other pertinent information and disclosures regarding the Company and its Subsidiaries (including their businesses, operations, financial projections and prospects) as may be reasonably requested by any Leasehold Mortgagee as though Parent or Merger Sub to assist in Parent and Merger Sub’s preparation of the same had been performed by TenantOffering Documents and all supplements thereto;
(jii) The time available using reasonable best efforts to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession assist in the preparation of any Offering Documents (and any supplement thereto) (including identifying any portion of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s controlinformation included therein that constitutes material, non-public information);
(kiii) If two or more Leasehold Mortgagees exercise their rights under this Leaseupon reasonable advance notice to the Company from the Parent, having appropriate senior management of the Leasehold Mortgagee who would be senior Company and its Subsidiaries, with appropriate seniority and expertise, and appropriate Representatives participate in priority if there were a foreclosure shall prevailreasonable number of meetings (including customary one-on-one meetings), due diligence sessions, drafting sessions and lender and “roadshow” presentations and ratings agency meetings and sessions;
(liv) This Lease shall not be materially modifiedcooperating with the marketing efforts of Parent and the Financing Sources in connection with the Debt Financing, amended or surrendered (except upon termination pursuant to this Lease) without including direct contact between senior management and Representatives of the prior written consent of each Leasehold MortgageeCompany and its Subsidiaries and potential lenders and investors in the Debt Financing;
(mv) The Trust Deed shall provide thatcooperating with the Financing Sources and their advisors in performing their due diligence;
(vi) if and to the extent Parent elects to prepay, redeem, terminate or otherwise discharge any of the Company’s existing indebtedness other than the Company Notes, which are the subject of Section 7.6, (w) delivering notices of prepayment, redemption or termination within the time periods required by the relevant agreements governing such indebtedness (to the extent such notices are and are permitted to be conditioned on the occurrence of the Closing), (x) providing all cooperation reasonably requested by Parent and Merger Sub to facilitate and effectuate such prepayment, redemption, termination or discharge (including via a tender offer), including communicating with agents, lenders, trustees and holders of such indebtedness, (y) delivering any other documents and materials as may be necessary in connection with the payoff, discharge and termination in full on the Closing, of such indebtedness and liens under such indebtedness and (z) obtaining customary payoff letters, lien terminations, instruments of discharge to be delivered at the Closing and any possessory collateral delivered in connection with such indebtedness;
(vii) providing at least three (3) Business Days prior to the institution Closing Date, all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by Parent at least 8 Business Days prior to the Closing Date with respect to applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act;
(viii) cooperating with Parent’s and Merger Sub’s legal counsel in connection with any proceedings legal opinions that such legal counsel may be required to foreclose deliver in connection with the Trust Deed or Debt Financing;
(ix) using reasonable best efforts to obtain customary consents of negotiations to accept an assignment in lieu independent accountants of the foreclosure Company and its Subsidiaries for use of their auditor opinions in any materials relating to the Debt Financing at the expense of and as reasonably requested by Parent on behalf of the Trust DeedFinancing Sources and directing such accountants to partake in customary accounting and auditor due diligence sessions;
(x) using reasonable best efforts to assist Parent and Merger Sub in obtaining any corporate credit and family ratings from any ratings agencies in respect of the relevant borrower, issuer or parent guarantors under the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commencedDebt Financing, and Landlord shall have the rightincluding assisting Parent, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed Merger Sub and the indebtedness which it secures at a purchase price equal Financing Sources in the preparation of materials for rating agency presentations;
(xi) using reasonable best efforts to assist in the preparation, execution and delivery of definitive financing documents, including equity, guarantee and collateral documents and other certificates and documents as may reasonably be requested by Parent;
(xii) facilitating the pledging of collateral for the Debt Financing (including the delivery of original share certificates, together with share powers executed in blank, with respect to the full amount then owing under said Trust DeedCompany and each of its Subsidiaries), including accrued interesttaking reasonable actions necessary to permit the Financing Sources to evaluate the Company’s and its Subsidiaries’ assets, reasonable attorneys’ fee inventory, cash management and accounting systems, policies and procedures relating thereto for the holder or beneficiary, purpose of establishing collateral arrangements (including establishing bank and applicable statutory costs other accounts and allowances if any foreclosure proceedings shall have commenced. All loan blocked account and control agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924foregoing);
(nxiii) Tenant shall give Landlord written notice using reasonable best efforts to assist the Financing Sources in benefitting from the existing lender relationships of any Trust Deed prior the Company and its Subsidiaries, including seeking consent to the execution and/or recording of same by Tenant, transactions contemplated hereby from lenders under existing Advance Facilities and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; andWarehouse Facilities;
(oxiv) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following executing and delivering such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.documen
Appears in 2 contracts
Sources: Merger Agreement (Wmih Corp.), Merger Agreement (Nationstar Mortgage Holdings Inc.)
Financing. Tenant may seek (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to obtain the Financing on a loan timely basis including (to finance the Improvements extent the proceeds of the term loans thereunder are needed to consummate the Transactions) pursuant to the New Term Loan Facility and if all conditions to funding thereunder have been satisfied (it being understood and agreed that Parent shall use its reasonable best efforts to satisfy (or cause to be satisfied) all such conditions on a timely basis), causing the lenders under the New Term Loan Facility to consummate the Financing on or prior to the Closing Date on the terms and conditions described in the New Term Loan Facility (it being understood that it is not a condition to Closing under this Agreement for Parent to obtain all or any portion of the Financing).
(b) Parent will keep the Company reasonably informed of the status of its efforts to arrange the Financing and to refinance satisfy the Improvements from time conditions thereof, including (i) giving the Company prompt notice upon having Knowledge of any breach by any party to time during the Term. For such purpose onlyNew Term Loan Facility or any termination of the New Term Loan Facility and (ii) upon the Company’s reasonable request, Tenant shall have advising and updating the rightCompany, in a reasonable level of detail, with Landlord’s respect to the status of the Financing and the anticipated closing of the Financing (which shall be at or prior to the Closing). Except as set forth in this Section 6.04, Parent shall not, without the prior written approval, consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), voluntarily reduce the committed principal amount of the New Term Loan Facility or amend, modify, supplement or waive any of the conditions or contingencies to assign all funding contained in the New Term Loan Facility or part of Tenant’s interest under this Leaseany other provision of, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyremedies under, the “Trust Deed”New Term Loan Facility, in each case to the extent such amendment, modification, supplement or waiver would reasonably be expected to have the effect of directly or indirectly (A) impairing the enforceability of the New Term Loan Facility or reducing the aggregate amount of debt financing under the New Term Loan Facility (except (x) as required thereby or (y) concurrently with the entry into alternative debt financing arrangements described in clause (x) of the proviso at the end of this clause (b). Landlord’s written approval , in equal amounts to, and having conditions to funding that are no less favorable to Parent than the New Term Loan Facility), (B) adversely affecting in any material respect the ability of Parent to timely consummate the Transactions, (C) amending, modifying, supplementing or denial waiving the conditions or contingencies to the Financing in a manner materially adverse to the Company or (D) materially delaying or impeding the Closing; provided that notwithstanding any other provision of this Agreement, Parent shall be provided entitled from time to Tenant within twenty time to (20x) Business Days of Tenant’s written requestsubstitute other debt financing (in equal amounts to, which shall contain and having conditions to funding that are no less favorable to Parent than the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20New Term Loan Facility) Business Days, the request shall be deemed approved. In the event Tenant assigns for all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2the Financing from the same or alternative financing sources (including, then for the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord avoidance of doubt, one or more issuances of debt securities; provided, that such debt securities shall not be required to sign any Trust Deed or the Noteconvertible into, exchangeable for or otherwise become obligated thereunder;linked to, any equity securities), and (y) amend, restate, replace, supplement or otherwise modify the New Term Loan Facility for the purpose of adding agents, co-agents, lenders, arrangers, bookrunners or other persons that have not executed the New Term Loan Facility as of the date of this Agreement, in each case, subject to subclauses (A), (B), (C) and (D) above.
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against Upon any such initiation amendment, restatement, replacement, supplement or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leasemodification, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection accordance with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease Section 6.04, the term “New Term Loan Facility” shall contain mean for all purposes of this Agreement the written agreement New Term Loan Facility as so amended, restated, replaced, supplemented or modified. Parent shall promptly make available to the Company true and complete copies of any such amendment, restatement, replacement, supplement or modification (with only the fee amounts and certain other provisions redacted, which redacted provisions shall not affect the principal amount or availability of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionFinancing).
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (British American Tobacco p.l.c.), Merger Agreement (Reynolds American Inc)
Financing. Tenant may seek (a) Immediately following the date hereof, TopCo Parent shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to obtain a loan the Pre-Emptive Rights Waiver as soon as practicable following the date hereof (and in any event within thirty (30) Business Days of the date hereof).
(b) TopCo Parent, Parent and Merger Sub shall use their commercially reasonable efforts to finance the Improvements take, or cause to be taken, all actions and to refinance do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Improvements Financing contemplated by the Financing Letters on or prior to the Closing Date on the terms and conditions described in the Financing Letters, including to: (i) maintain in effect and comply with the Financing Letters and any Definitive Financing Agreements in accordance with their terms until the funding of the Financing to TopCo Parent or one or more of its Affiliates that are within its control on the Closing Date; (ii) satisfy on a timely basis all conditions to the funding of the Financing set forth in the Financing Letters and the Definitive Financing Agreements applicable to TopCo Parent or one or more of its Affiliates that are within its control; (iii) negotiate and enter into additional definitive debt financing agreements to the extent necessary (including the entrance into amended and/or restated versions of already existing definitive debt facility agreements) on the terms and conditions contemplated by the Debt Letters (the “Definitive Debt Financing Agreements”) and definitive equity financing agreements on the terms and conditions contemplated by the Equity Letters (the “Definitive Equity Financing Agreements” and together with the Definitive Debt Financing Agreements, the “Definitive Financing Agreements”); and (iv) subject to the satisfaction or waiver of the Financing Conditions, cause the Financing Sources to consummate the Financing, and fund the amounts thereunder on the Closing Date. TopCo Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Financing and to satisfy the conditions thereof. TopCo Parent will promptly provide to the Company copies of all Definitive Financing Agreements. TopCo Parent shall give the Company prompt written notice after the occurrence of any of the following: (A) any material breach or material default by any party to the Financing Letters or definitive agreements related to the Financing of which TopCo Parent becomes aware; (B) the receipt by TopCo Parent, Parent or Merger Sub of any written notice or written communication from any Financing Source with respect to any actual or potential breach, default, termination or repudiation by any party to a Financing Letter or any definitive agreements related to the Financing or of any provisions of any Financing Letter or such definitive agreements; (C) any material dispute or disagreement between or among any parties to any of the Financing Letters or any Definitive Financing Agreement with respect to the conditionality or amount of the Financing or the obligation to fund the Financing or the amount of the Financing to be funded at the Closing (but excluding ordinary course negotiations); (D) if for any reason, TopCo Parent, Parent or Merger Sub at any time believes it will not be able to time during obtain all or any portion of the TermFinancing in an amount sufficient to consummate the Offer, the Merger and the other Contemplated Transactions; and (E) any fact, change, event or circumstance that could reasonably be expected to prevent or materially delay or impede the consummation of the Offer, the Merger or the Financing contemplated by the Financing Letters. For such purpose only, Tenant shall have In the rightevent that all conditions contained in the Financing Letters (other than, with Landlordrespect to the Debt Financing, the availability of the Equity Financing) have been satisfied and Parent is required to consummate the Closing pursuant to Section 2.04, TopCo Parent shall use its commercially reasonable efforts to cause each Financing Source to fund its respective portion of the Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date.
(c) Prior to the Closing, TopCo Parent, Parent and Merger Sub shall not, and Parent shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its rights, provisions or remedies under, the Financing Letters or Definitive Financing Agreements without the Company’s prior written approval, consent which consent shall not be unreasonably withheld; provided, conditioned or delayedthat TopCo Parent, to assign all or part of TenantParent and Merger Sub may, without the Company’s interest under this Leaseprior written consent, as security to any Institutional Lender (a “Leasehold Mortgagee”i) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement any amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Letters or Definitive Debt Financing Agreements that would not, and would not reasonably be expected to, reduce the aggregate amount of the Debt Financing below an amount, together with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trusteeEquity Financing, and any lien which it createsavailable cash of TopCo Parent, shall expire on the Company and their respective Subsidiaries, required to pay the Merger Amounts, or before prevent, materially delay or impede the consummation of the Offer, the Merger or the Debt Financing contemplated by the Debt Letters; and (ii) amend, replace, supplement or otherwise modify the Debt Letters to add lenders, lead arrangers, book runners, syndication agents or similar entities that had not executed the Debt Letters as of the date hereof so long as any such addition would not reasonably be expected to prevent, materially delay or impede the consummation of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the LandlordOffer, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements Merger or the Premises;
(g) Except as otherwise provided hereinDebt Financing contemplated by the Debt Letters, no Leasehold Mortgagee or anyone claiming bybut only, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject with respect to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
the foregoing clauses (i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
and (j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedingsii), to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated doing so would not (x) impose new or additional conditions or expand, amend or modify any existing condition to the receipt and availability of the Debt Financing in a manner that would reasonably be expected to prevent or materially delay or impede the ability of Parent to consummate the Closing or (y) adversely impact the ability of TopCo Parent, Parent or Merger Sub, as applicable, to enforce its rights against the Debt Financing Sources under the terms Debt Letters. Upon any such amendment, replacement, supplement or modification, the term “Debt Letters” and “Definitive Debt Financing Agreements” shall mean the Debt Letters or Definitive Debt Financing Agreements, as applicable, as so amended, replaced, supplemented or modified. TopCo Parent shall promptly deliver to the Company copies of this Lease to restore the Improvements following any such damage amendment, replacement, supplement or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) other modification of the fair market value of the Improvements at the time the loan is entered intoDebt Letters or Definitive Debt Financing Agreements.
Appears in 2 contracts
Sources: Merger Agreement (Ig Design Group Americas, Inc.), Merger Agreement (CSS Industries Inc)
Financing. Tenant may seek (a) During the Pre-Closing Period, Parent shall use its reasonable best efforts to arrange the Debt Financing and obtain the financing contemplated thereby in an amount sufficient to fund the Financing Amounts on the terms and conditions set forth in the Debt Commitment Letter, including using its reasonable best efforts to (i) taking into account the Marketing Period, negotiate, execute and deliver definitive agreements with respect to the Debt Financing contemplated by the Debt Commitment Letter on the terms and conditions contemplated by the Debt Commitment Letter or on such other terms acceptable to Parent and the applicable Debt Financing Sources so long as such other terms would not (x) materially delay or prevent the Closing, (y) adversely impact in any material manner the likelihood of the funding of the Debt Financing or the satisfaction of the conditions to obtaining any of the Debt Financing or (z) adversely impact in any material manner the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or the definitive debt financing documents, (ii) satisfy on a loan timely basis (or obtain waivers of) all conditions to finance funding that are applicable to Parent in the Improvements Debt Commitment Letter and the definitive agreements with respect to refinance the Improvements from time Debt Financing contemplated by the Debt Commitment Letter (and not take any action that would reasonably be expected to time during prevent, impede or delay the Term. For such purpose onlyconsummation of the Debt Financing contemplated by the Debt Commitment Letter beyond the Outside Date), Tenant (iii) enforce its rights under the Debt Commitment Letter and the definitive agreements with respect to the Debt Financing in a timely and diligent manner and (iv) consummate the Debt Financing at or prior to the Closing.
(b) Notwithstanding anything herein to the contrary, Parent shall have the rightright to (x) reduce (or terminate) the commitments under the Debt Commitment Letter by the amount of cash proceeds from consummated offerings or other incurrences of debt (including notes) of Parent, with LandlordMerger Sub I and/or Merger Sub II consummated after the date of this Agreement which proceeds are not subject to any conditions or contingencies to financing (including conditions to any escrow agreement) that are not contained in, or are more expansive or less favorable to Parent or the Company than those contained in, the Debt Commitment Letter and (y) substitute such proceeds for the amount by which the commitments under the Debt Commitment Letter are reduced (or terminated); provided that:
(i) an amount in cash or cash equivalents equal to such substituted proceeds is retained by Parent, Merger Sub I and/or Merger Sub II and there are no conditions or restrictions on Parent’s prior written approval, ability to use such amount to fund the Transactions (including any restriction as to which shall not be unreasonably withheld, conditioned or delayeda Subsidiary of Parent is subject, to assign all the extent such restriction prohibits such Subsidiary from transferring, directly or part of Tenant’s interest under this Leaseindirectly, as security such amount to Parent);
(ii) such substituted proceeds, together with any Institutional Lender cash funds available to Parent and the remaining Debt Financing shall in no event be less than the Financing Amounts; and
(a “Leasehold Mortgagee”iii) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty extent any of such proceeds are from consummated offerings or other incurrences of debt (20including notes) Business Daysthat have scheduled redemptions or mandatory redemptions or put rights (other than customary asset sale, change of control redemption or put rights), such scheduled redemption is not scheduled to occur prior to, and such right is not exercisable prior to, a date that is earlier than the request Outside Date.
(c) Further, Parent shall be deemed approved. In have the event Tenant assigns right to substitute commitments in respect of other financing for all or any portion of Tenant’s Interest the Debt Financing from the same and/or alternative bona fide third party financing sources (which will be in an amount sufficient to secure a loan permitted under this Section 14.2fund, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement when taken together with the Leasehold Mortgagee;
other resources of Parent and other financing arrangements, the Financing Amounts), so long as (b1) The Landlord shall any conditions precedent and contingencies to the funding of such financing are in the aggregate, in respect of certainty of funding, equivalent to (or more favorable to Parent than) the conditions precedent and contingencies set forth in the Debt Commitment Letter, (2) such substitute commitments are in an amount, together with cash funds available to Parent and any other Debt Financing, no less than the Financing Amounts and (3) such substitution does not be required (x) materially delay or prevent the Closing, (y) adversely impact in any material manner the likelihood of the funding of the Debt Financing or (z) adversely impact in any material manner the ability of Parent, Merger Sub I or Merger Sub II to sign any Trust Deed enforce its rights against the other parties to the Debt Commitment Letter or the Notedefinitive debt documentation (in each case, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or accordance with their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectivelyterms) or reversionary interest in the Improvements ability of Parent, Merger Sub I or Merger Sub II to consummate the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, transactions contemplated hereby prior to the institution of Closing Date (“Alternative Financing”). If the Debt Commitment Letter (or any proceedings to foreclose the Trust Deed definitive debt documentation) expires or of negotiations to accept an assignment in lieu is terminated or any portion of the foreclosure of Debt Financing becomes unavailable on the Trust Deedterms and conditions (including any “flex” provisions) contemplated in the Debt Commitment Letter, Parent, Merger Sub I and Merger Sub II shall use their reasonable best efforts to, as promptly as practicable following the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving occurrence of such notice to purchase event but no later than the Trust Deed fifth Business Day immediately preceding the Outside Date, arrange for and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ obtain debt financing from alternative sources so long as such alternative financing would constitute an Alternative Financing. The new debt commitment letter and fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements letter entered into in connection with any ImprovementsAlternative Financing are referred to, including but not limited to construction loansrespectively, long term loans as a “New Debt Commitment Letter” and refinancing permitted by a “New Fee Letter.” In the event Parent, Merger Sub I or Merger Sub II enter into any such New Debt Commitment Letter (or any amendment, restatement, supplement or modification of the Debt Commitment Letter in accordance with the terms of Section 5.17(b)), (x) Parent, Merger Sub I and Merger Sub II shall promptly provide the Company with true, correct and complete copies thereof (with customary redactions), (y) any reference in this Lease Agreement to the “Debt Financing” shall contain mean the written agreement of debt financing contemplated by the Leasehold Mortgagee that Landlord Debt Commitment Letter as so amended, restated, supplemented or modified or by such New Debt Commitment Letter, as applicable, and (z) any reference in this Agreement to the “Debt Commitment Letter” (and any definition incorporating the term “Debt Commitment Letter,”) shall be notified by deemed to include the Leasehold Mortgagee within thirty (30) days of Debt Commitment Letter and any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof Fee Letter as so modified to the extent Tenant is obligated under not superseded by a New Debt Commitment Letter or New Fee Letter, as the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan case may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements be, at the time in question and any New Debt Commitment Letter or New Fee Letter to the loan is entered intoextent then in effect.
Appears in 2 contracts
Sources: Merger Agreement (Brinks Co), Merger Agreement (NCR Atleos Corp)
Financing. Tenant may seek Prior to obtain a loan the Closing, the Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts to finance provide to Contributor, Raptor and their respective Subsidiaries such cooperation reasonably requested by Contributor, Raptor and their respective Subsidiaries, and which is customarily provided by similarly situated Persons engaging in similar transactions, in connection with the Improvements Company, the Company Subsidiaries or its or their respective assets pursuing any proposed financing, including any expansion of any existing arrangements relating to Indebtedness for Borrowed Money of the Contributor, to reflect the consolidation of the assets of the Company with those of the Contributed Entities, including: (a) using reasonable best efforts to cooperate with marketing efforts and to refinance assist with the Improvements from time to time during the Term. For preparation of materials for rating agency presentations and bank books, offering memoranda or other marketing documents, customarily reviewed or reasonably requested by such purpose only, Tenant shall have the right, with Landlord’s rating agencies and banks; (b) upon reasonable prior written approvalnotice, which participating at reasonable times (and during regular business hours) in a reasonable number of meetings, presentations and rating agency and due diligence sessions; and (c) reasonably assisting with the preparation of any credit agreement, reasonable pledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents; provided, that (A) nothing in this Section 5.24 shall not require the Company to (I) take any action that would reasonably be expected to conflict with or violate any of the Company’s Organizational Documents or any Law or (II) pay any fees, reimburse any expenses or give any indemnities prior to the Closing, (B) nothing in this Section 5.24 shall require such cooperation to the extent it would unreasonably withheldinterfere with the ongoing business or operations of the Company, conditioned (C) no obligation of the Company or delayed, to assign all any Company Subsidiary under any document or part of Tenant’s interest under agreement executed by the Company or any Company Subsidiary in connection with this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial Section 5.24 shall be provided to Tenant within twenty effective until the Closing and (20D) Business Days Contributor shall promptly upon receipt of Tenant’s written requesta reasonably detailed invoice therefor, which shall contain reimburse the information regarding Company for any reasonable and documented out-of-pocket expenses and costs incurred in connection with the assignee’s financial strength, reputation obligations of the Company and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted Company Subsidiaries under this Section 14.25.24; provided, then further, that, except as expressly set forth in this Agreement, nothing in this Agreement shall require the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed Company or the NoteCompany Subsidiaries to cause the delivery of (x) legal opinions or reliance letters, or otherwise become obligated thereunder;
(cy) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes any financial information in a trustee, and form not customarily prepared by the Company with respect to such period or (z) any lien which it creates, shall expire on financial information with respect to a fiscal period that has not yet ended or before has ended less than forty-five (45) days prior to the date of expiration of this Lease;
such request (e) The Trust Deed imposes no financial obligations on the Landlordor, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or case of annual financial statements, ninety (90) days prior to such request). For the Premises;
(g) Except as otherwise provided hereinavoidance of doubt, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, each Party acknowledges and agrees that obtaining any proposed financing contemplated by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject Section 5.24 is not a condition to all conditions, covenants Closing and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructiondelay Closing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under Subject to the other provisions of this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
Agreement, Amneal shall use reasonable best efforts (jand shall use reasonable best efforts to cause its Affiliates and Subsidiaries) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedingstake, or cause to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction taken, all actions necessary or application advisable to obtain, or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leasecause to be obtained, the Leasehold Mortgagee who would Debt Financing on the terms and conditions, described in the Debt Commitment Letter (including as such terms may be senior modified or adjusted in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection accordance with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement “flex” provisions contained in the Fee Letter), including using reasonable best efforts to (A) maintain in effect the Debt Commitment Letter until the funding of the Leasehold Mortgagee that Landlord shall be notified Debt Financing at or prior to Closing, (B) negotiate definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent in all material respects with the terms and conditions contained in the Debt Commitment Letter (including any related “flex” provisions) or on other terms not less favorable, in the aggregate, to Amneal than the terms and conditions (including the “flex” provisions) contemplated by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof Debt Commitment Letter but only to the extent Tenant is obligated under that any such other terms would not reasonably be expected to adversely impact or delay in any material respect the terms ability of Amneal to consummate the Transactions and the Ancillary Transactions in accordance with this Lease Agreement or obtain the Debt Financing (it being agreed that, notwithstanding the foregoing, Amneal may modify, supplement, amend or amend and restate the Debt Commitment Letter solely to restore add lenders, lead arrangers, bookrunners, syndication agents or similar entities (and make incidental or conforming amendments or modifications to reflect the Improvements following addition of any such damage lenders, lead arrangers, bookrunners, syndication agents and similar entities), (C) satisfy (or destruction.
obtain a waiver of) all conditions within its control to obtaining the Debt Financing and (pD) No loan may be in an amount which exceeds seventy-five percent (75%) upon satisfaction of all of the fair market value conditions in this Agreement to Amneal’s and Impax’s obligations to effect the Closing, and satisfaction of all of the Improvements at conditions set forth in the time Debt Commitment Letter, enforcing its rights against the loan is entered intoother parties to the Debt Commitment Letter, if any, including to require such parties to provide the Debt Financing.
Appears in 2 contracts
Sources: Business Combination Agreement (Atlas Holdings, Inc.), Business Combination Agreement (Impax Laboratories Inc)
Financing. Tenant may seek (i) Parent has delivered to obtain a loan to finance the Improvements Company correct and to refinance complete copies of (x) an executed commitment letter among Parent and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA and (y) an executed commitment letter among TerraForm Power Operating, LLC and ▇▇▇▇▇▇▇ Sachs Bank USA,(each document in (x) and (y), including any related exhibits, schedules, annexes, supplements and other related documents), each dated on or about the Improvements date of this Agreement (as amended, modified, supplemented, replaced or extended from time to time during after the Term. For such purpose onlydate of this Agreement in compliance with this Agreement, Tenant shall have the right“Debt Financing Commitments”), with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part from each of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage the financing sources identified therein (collectively, the “Trust DeedDebt Financing Sources”), pursuant to which the Debt Financing Sources have committed, subject to the terms and conditions thereof, to provide debt financing in the amounts set forth therein for the purpose of funding the transactions contemplated by this Agreement and the Affiliate Sale (collectively, the “Debt Financing”), together with a customarily redacted fee letter from the Debt Financing Sources related to the Debt Financing (the “Fee Letter”).
(ii) Except for the Fee Letter or as expressly set forth in the Debt Financing Commitments, as of the date of this Agreement, there are no side letters or other agreements, Contracts or written arrangements to which Parent or any of its affiliates is a party related to the funding or investing, as applicable, of the Debt Financing which could reasonably be expected to adversely affect the availability of the Debt Financing contemplated by the Debt Financing Commitments. Landlord’s written approval Assuming satisfaction of the conditions set forth in Section 6.01 (to the extent any such condition is a condition under the control of the Company) and Section 6.03, Parent does not have any reason to believe, as of the date of this Agreement, that it or denial shall any of its subsidiaries or affiliates will be unable to satisfy all conditions to be satisfied by it, its subsidiaries and its controlled affiliates with respect to any of the Debt Financing Commitments at the time it, its subsidiaries and its affiliates is required to consummate the Closing hereunder or that the Debt Financing will not be available to Parent or its affiliates party thereto at the Closing, including any reason to believe that any of the Debt Financing Sources will not perform their respective funding obligations under the Debt Financing Commitments in accordance with their respective terms and conditions.
(iii) As of the date hereof, there are no conditions precedent or other contingencies (including pursuant to any “flex” provisions) related to the funding of the full amount of the Debt Financing pursuant to the Debt Financing Commitments, other than as expressly set forth in the Debt Financing Commitments. Assuming the Debt Financing is funded in accordance with the Debt Financing Commitments, the net proceeds contemplated by the Debt Financing Commitments, together with other financial resources of Parent, whether directly held or available for use by Parent, and its controlled affiliates including cash on hand and the proceeds of loans under existing credit facilities of Parent or its controlled affiliates on the Closing Date and funds that will be provided to Tenant within twenty (20) Business Days by controlled affiliates of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Parent pursuant to the request within twenty Affiliate Sale Agreement, in the aggregate, shall provide Parent and Merger Sub with cash proceeds on the Closing Date sufficient for the satisfaction of all of Parent’s and Merger Sub’s payment obligations under this Agreement and under the Debt Financing Commitments, including the payment of any amounts required to be paid pursuant to Article II, any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation in connection with the Merger and the Debt Financing and any indebtedness required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger (20including all indebtedness of the Company and its subsidiaries required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger).
(iv) Business DaysAs of the date of this Agreement, the request shall Debt Financing Commitments are in full force and effect and constitute valid and binding obligations of Parent and any of its affiliates party thereto and, to the knowledge of Parent, each other party thereto, enforceable in accordance with their terms against Parent and any of its affiliates party thereto and, to the knowledge of Parent, each other party thereto (except as such enforcement may be deemed approved. In subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to creditors’ rights generally, and general equitable principles) and, as of the date of this Agreement, no event Tenant assigns all has occurred that, with or without notice, lapse of time, or both, would reasonably be expected to constitute a default or breach or a failure to satisfy a condition precedent on the part of Parent or any portion affiliate of Tenant’s Interest Parent or, to secure a loan permitted the knowledge of Parent, any other party thereto under this Section 14.2, then the following shall apply:
terms and conditions of the Debt Financing Commitments. Parent (aor its applicable affiliate) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be has paid in full any and all commitment fees or other fees required to sign any Trust Deed or be paid pursuant to the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon terms of the Landlord’s fee title in Debt Financing Commitments and the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire Fee Letters on or before the date of expiration this Agreement. As of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlorddate hereof, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession none of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction Debt Financing Commitments or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially Fee Letters has been modified, amended or surrendered otherwise altered (except upon and no such modification, amendment or alteration is contemplated by Parent or, to the knowledge of Parent, any other party thereto) and (ii) none of the respective commitments under any of the Debt Financing Commitments have been withdrawn, terminated or rescinded (and no such withdrawal, termination or recission is contemplated by Parent or, to the knowledge of Parent, any other party thereto).
(v) Neither Parent nor Merger Sub is entering into this Agreement or the Debt Financing Commitment with the intent to hinder, delay or defraud either present or future creditors. Assuming (i) satisfaction of the conditions to Parent’s obligation to consummate the Merger and (ii) the payment of the aggregate Merger Consideration payable to the holders of Company Common Stock and equity awards pursuant to this Lease) without the prior written consent Article II, payment of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are all amounts required to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements paid in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement consummation of the Leasehold Mortgagee that Landlord shall be notified by Merger and the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default transactions contemplated hereby, indebtedness incurred pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice issuance of the Convertible Notes pursuant to the Merger, and payment of all related fees and expenses, each of Parent and the Surviving Corporation will be Solvent as of the Effective Time and immediately after the consummation of the transactions contemplated hereby. For the purposes of this Agreement, the term “Solvent” when used with respect to any person, means that, as of any Trust Deed prior to date of determination (a) the execution and/or recording amount of same by Tenantthe “fair saleable value” of the assets of such person will, as of such date, exceed (i) the value of all “liabilities of such person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable laws governing determinations of the insolvency of debtors, and shall accompany such notice with a true copy (ii) the amount that will be required to pay the probable liabilities of such Trust Deed person on its existing debts (including contingent and other liabilities) as such debts become absolute and mature, (b) such person will not have, as of such date, an unreasonably small amount of capital for the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction operation of the Improvements shall businesses in which it is engaged or proposed to be available for restoration thereof engaged following such date, and (c) such person will be able to the extent Tenant is obligated under the terms pay its liabilities, including contingent and other liabilities, as they mature. For purposes of this Lease to restore definition, “not have an unreasonably small amount of capital for the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) operation of the fair market value of the Improvements at the time the loan businesses in which it is entered intoengaged or proposed to be engaged” and “able to pay its liabilities, including contingent and other liabilities, as they mature” means that such person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations as they become due.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sunedison, Inc.), Agreement and Plan of Merger (Vivint Solar, Inc.)
Financing. Tenant may seek (a) Subject to the terms and conditions of this Agreement, Constellation shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain a loan or cause to finance the Improvements be obtained, and to refinance consummate, the Improvements from time Committed Debt Financing on or prior to time during the TermClosing Date on the terms and conditions set forth in the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, any financing conditions in the Debt Commitment Letter that are within Constellation’s control (but excluding any condition where the failure to be so satisfied is a direct result of any of the Other Parties’ failure to furnish information as required under Section 6.15(c)); (iv) upon satisfaction of the financing conditions set forth in the Debt Commitment Letter, to consummate the Committed Debt Financing at or prior to the Closing, including to cause the Debt Financing Sources and the other persons committing to fund the Committed Debt Financing to fund the Committed Debt Financing at the Closing in such amount which, taken together with the Constellation-Polaris Surviving Entity’s anticipated unrestricted cash on hand, would be no less than the amount that would be required to be pay the Debt Payoff Amount and all transaction expenses. For Constellation shall keep the Other Parties informed on a reasonably current basis of the status of its efforts and those of its Subsidiaries to arrange and consummate the Committed Debt Financing. Constellation shall not permit or agree, and shall cause its Subsidiaries not to permit or agree, to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such purpose onlytermination, Tenant amendment, modification, waiver or replacement (A) reduces (or would have the effect of reducing) the aggregate amount of the Committed Debt Financing; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Committed Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Committed Debt Financing (or satisfaction of the financing conditions in the Debt Commitment Letter that are in Constellation’s control) on the Closing Date or (y) adversely impact the ability of Constellation to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) Constellation shall not be deemed to have violated this Section 6.15(a) if Constellation shall have the right, with Landlord’s (A) provided prior written approvalnotice to the Other Parties of any termination, which amendment, modification, waiver or replacement it or its Subsidiaries proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 6.15(a) and (B) the parties reasonably agree that, taking into account such termination, amendment, modification, waiver or replacement, New Polaris will have at the Closing funds available to it that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all parties; provided further that Constellation shall not be deemed to have violated this Section 6.15(a) if with the approval of Polaris and Sirius, not to be unreasonably withheld, conditioned Constellation shall, or delayedshall cause its applicable Subsidiary to, negotiate and execute any Replacement Committed Debt Financing, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of this provision and the Debt Commitment Letter may be amended to add additional Debt Financing Sources. Constellation shall promptly deliver to the Other Parties copies of any such termination, amendment, modification, waiver or replacement, including any Replacement Committed Debt Financing. Without limiting the foregoing, Constellation shall, and shall cause its applicable Subsidiary to, take all actions required to enforce its rights under the Debt Commitment Letter, including as may be directed by one or more of the Other Parties in writing, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement extent consistent with the Leasehold Mortgagee;Debt Commitment Letter.
(b) The Landlord To the extent that New Polaris is not expected to have funds available, including cash on hand and the Committed Debt Financing, that are sufficient to enable it to consummate the Transactions, including paying the Debt Payoff Amount and the transaction expenses of all the parties, the parties shall not take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable that are within their control to arrange and procure and have available, as of the Closing, Indebtedness (the “Supplemental Debt Financing”) constituting, together with unrestricted cash on hand and the Committed Debt Financing available at the Closing, funds sufficient to pay all of the cash amounts required to sign be provided by New Polaris and its Subsidiaries in connection with the consummation of the Transactions, including the amounts payable in connection with the consummation of the Mergers, all transaction expenses and the amounts to fund the Debt Payoff Amount. It is understood that the parties will use their reasonable best efforts to arrange and procure any Trust Deed Supplemental Debt Financing required under the preceding sentence notwithstanding the cost of obtaining such Supplemental Debt Financing or the Noteactions required to arrange and procure such Supplemental Debt Financing (including any assets sales); provided that such cost or actions would not reasonably be expected to result in a material adverse effect with respect to New Polaris after the Closing or a material adverse effect with respect to any party prior to the Closing. Subject to the prior sentence, each party shall keep the Other Parties informed in reasonable detail of the status of its efforts to arrange any financing required in connection with the consummation of the Transactions. Each party further acknowledges and agrees that if the Committed Debt Financing and/or Supplemental Debt Financing are not available or otherwise become obligated thereunder;not sufficient to pay the amounts described above, the parties shall use reasonable best efforts to find alternative funding sources (including through debt or equity offerings or asset sales) to permit the Transactions to be consummated as soon as possible in accordance with this Agreement and, in any event, before the Outside Date.
(c) No Prior to the Closing Date, each party shall provide, and shall use reasonable best efforts to cause its Subsidiaries and Representatives to provide, on a timely basis, to the Other Parties, all cooperation reasonably requested by the Other Parties that is necessary, advisable or customary in connection with the Debt Financing. Without limiting the generality of the foregoing, such liencooperation and reasonable best efforts for purposes of this Section 6.15(c) in any event shall include: (i) providing the Other Parties, charge the Debt Financing Sources and potential Supplemental Debt Financing sources and their respective agents with (A) the financial statements and other financial information regarding the party and its Subsidiaries and (B) such financial information related to the party and its Subsidiaries as is reasonably required by Polaris for New Polaris to produce the pro forma financial statements required in connection with any Debt Financing and specified in writing by Polaris to the Other Parties; (ii) participating (including by making members of senior management with appropriate seniority and expertise, reasonably available to participate) in customary syndication and marketing activities, including sessions with the ratings agencies and underwriters, in connection with the Debt Financing; (iii) reasonably cooperating with the Debt Financing Sources’ and potential Supplemental Debt Financing sources’ and their respective agents’ due diligence; (iv) reasonably cooperating with the marketing efforts for any portion of the Debt Financing; (v) assisting Polaris in New Polaris’ preparation of customary bank information memoranda, lender presentations, offering memoranda, private placement memoranda (including under Rule 144A and/or Regulation S under the Securities Act), registration statements, prospectuses and prospectus supplements under the Securities Act and other materials in connection with a syndicated bank financing, securities offering or encumbrance shall constitute a lien other debt offering in connection with the Debt Financing to the extent relating to the party and the party’s Subsidiaries; (vi) assisting Polaris with New Polaris’ preparation of pro forma financial statements and pro forma financial information; (vii) instructing such party’s certified independent auditors to provide (x) consent to use of their reports in any materials relating to the Debt Financing, including SEC filings and offering memoranda that include or encumbrance upon incorporate the Landlordparty’s fee title consolidated financial information and their reports thereon in accordance with normal customary practice and (y) customary auditors reports and comfort letters (including “negative assurances” comfort) with respect to financial information relating to the party and its Subsidiaries in customary form; (viii) using reasonable best efforts to provide (including using reasonable best efforts to obtain such documents from its advisors) customary certificates and other customary closing documents as may be reasonably requested by the Debt Financing Sources and potential Supplemental Debt Financing sources; (ix) causing the taking of corporate actions within the control of the party reasonably necessary to permit the completion of the Debt Financing; (x) to the extent necessary or advisable, using reasonable best efforts to facilitate the pledging of collateral and executing and delivering pledge and security documents (and any other documents or instruments required for the creation and perfection of security interests in the Premises collateral securing the Debt Financing) or their reversionary interest other definitive financing documents reasonably requested by the Debt Financing Sources or potential Supplemental Debt Financing sources (including guarantees and other deliverables), provided, however, that no obligation of any party or any of such party’s Subsidiaries under any such agreement or instrument under this clause (x) shall be effective until the Closing Date; (xi) so long as such information is reasonably requested at least 10 business days prior to the Closing Date, using reasonable best efforts to provide, at least five (5) business days prior to the Closing Date, to the Debt Financing Sources and potential Supplemental Debt Financing sources all documentation and other information with respect to the party and its Subsidiaries and reasonably requested by such Debt Financing sources that such Debt Financing sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (xii) providing to Polaris such pertinent information reasonably requested by Polaris, and updating such information, describing the party or its Subsidiaries to be used in marketing or offering materials prepared in accordance with normal customary practice in connection with the Improvements;Debt Financing such that, after giving effect to such updates, (A) such information, when taken as a whole along with the Constellation SEC Documents, Polaris SEC Documents or Sirius SEC Documents, as applicable, filed by such party since July 1, 2014 through such date, does not contain as of the time provided, any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made and (B) the financial statements and other financial information included in such updated information are sufficiently current pursuant to Rule 3-12 under Regulation S-X to the extent applicable and permit the party’s independent auditors to issue a customary comfort letter, including customary “negative assurance” comfort (in accordance with normal practices and procedures).
(d) Any interest Notwithstanding anything in this Agreement to the Premises contrary, no party nor any of such party’s Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 6.15 that would (i) cause any representation or warranty in this Agreement to be breached by the party or any of the party’s Subsidiaries, (ii) cause any director, officer or employee or stockholder of the party or any of the party’s Subsidiaries to incur any personal liability not subject to indemnification, (iii) conflict with the Organizational Documents of the party or any Laws applicable thereto, (iv) provide access to or disclose information that the party or any of the party’s Subsidiaries reasonably determines would jeopardize any attorney–client privilege of the party or any of the party’s Subsidiaries, or (v) subject to Section 6.15(b) (A) unreasonably interfere with the business or ongoing operations of the party and its Subsidiaries or (B) reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which the Trust Deed establishes in party or any of the party’s Subsidiaries is a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;party.
(e) The Trust Deed imposes no financial obligations on All non-public or otherwise confidential information regarding the Landlord, contingent parties or otherwise;any of the parties’ Subsidiaries obtained by the Other Parties or their Representatives pursuant to this Section 6.15 shall be kept confidential in accordance with the Confidentiality Agreements.
(f) The Trust Deed At the Closing, New Polaris shall, and the parties shall neither subordinate nor affect use their reasonable best efforts to cause the Landlord’s right trustee under the Sirius Indentures to, execute and deliver a supplemental indenture, in form satisfactory to conveysuch trustee, mortgagepursuant to which New Polaris shall (i) expressly assume all of the obligations of Sirius under the securities issued under the Sirius Indentures and all of the obligations of Sirius under the Sirius Indentures applicable thereto and (ii) if applicable, encumber provide for such convertible or otherwise hypothecate exchangeable notes to be convertible or exchangeable into New Polaris Common Shares in any way accordance with the Landlord’s fee or leasehold title (respectively) or reversionary interest in terms of the Improvements or the Premises;Sirius Indentures.
(g) Except as otherwise provided hereinAt the Closing, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee New Polaris shall, by virtue of and the parties shall use their reasonable best efforts to cause the trustee under the Constellation Indentures to, execute and deliver a supplemental indenture, in form satisfactory to such claimtrustee, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed pursuant to which New Polaris shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession expressly assume all of the leasehold interest shall be deemed extended by obligations of Constellation under the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights convertible notes issued under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu Constellation Indentures and all of the foreclosure obligations of Constellation under the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that Constellation Indentures applicable thereto and (ii) provide for such proceedings or negotiations are convertible notes to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements convertible into New Polaris Common Shares in connection accordance with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionConstellation Indentures.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Colony Capital, Inc.), Merger Agreement (Barrack Thomas Jr)
Financing. Tenant (a) Subject to the terms and conditions of this Agreement, unless otherwise agreed, each of Parent and Merger Sub will not permit any assignment of, any material amendment or modification to be made to, or any waiver of any material provision or remedy pursuant to the Financing Letters if such assignment, amendment, modification or waiver would, or would be reasonably expected to: (i) reduce the aggregate amount of the Debt Financing, including by changing the amount of fees to be paid or original issue discount of the Debt Financings (unless the Equity Financing is increased by a corresponding amount or Alternate Debt Financing that complies with Section 6.15(b) has been made available in a corresponding amount); (ii) adversely impact in any material respect the ability of the Company (as a third party beneficiary of the Equity Commitment Letter), Parent or Purchaser to enforce its respective rights against the other parties to the Financing Letters or the definitive agreements with respect thereto; or (iii) prevent or materially delay the consummation of the Financing or the consummation of the Offer or the Merger.
(b) Each of Parent and Merger Sub shall use its reasonable best efforts to arrange the Debt Financing and timely consummate the Debt Financing on the terms and conditions set forth in the Debt Commitment Letters, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letters in accordance with the terms and subject to the conditions thereof; (ii) substantially comply with its obligations under the Debt Commitment Letters; (iii) in good faith negotiate, execute and deliver definitive agreements with respect to the Debt Financing contemplated by the Debt Commitment Letters on the terms and conditions contemplated by the Debt Commitment Letters or as such terms may seek otherwise be agreed; (iv) satisfy on a timely basis all conditions to the Debt Financing that are applicable to, and within the control of, Parent, Merger Sub and their respective Subsidiaries in the Debt Commitment Letters and the definitive agreements with respect to the Debt Financing contemplated by the Debt Commitment Letters; and (v) consummate the Debt Financing at or prior to the Offer Closing. In furtherance and not in limitation of the foregoing, in the event that any portion of the Debt Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letters (other than due to the failure of a condition to the consummation of the Debt Financing resulting from a breach of any representation, warranty, covenant or agreement of the Company set forth in this Agreement, which (if curable) has not been cured by the earlier of (x) three (3) Business Days prior to the Offer Closing Date and (y) twenty (20) days after the Company’s receipt of written notice thereof) and such portion is required to fund the payments required to be made by the Parent or Merger Sub hereunder, each of Parent and Merger Sub shall use its respective reasonable best efforts to, as promptly as practicable following the occurrence of such event: (A) obtain alternative debt financing (the “Alternate Debt Financing”) from alternative sources on terms and conditions not materially less favorable in the aggregate to Parent and Merger Sub than those set forth in the Debt Commitment Letters and in an amount sufficient, when added to the portion of the Financing that is still available and available cash on hand and the Equity Financing, to consummate the transactions contemplated by this Agreement and (B) obtain one or more new financing commitment letters with respect to such Alternate Debt Financing (the “New Debt Commitment Letter”), which New Debt Commitment Letter will replace the applicable existing Debt Commitment Letter in whole or in part; provided, however, that nothing herein shall be construed as to require Parent or Merger Sub to accept Alternate Debt Financing (including any commitments therefor) that (1) are less favorable than those in the applicable existing Debt Commitment Letter, (2) require the payment of fees in excess of those contemplated in the applicable existing Debt Commitment Letter, or (3) could reasonably be expected to prevent or materially delay the Offer, the Merger and the other transactions contemplated hereby. Parent shall promptly (and no later than one (1) Business Day after receipt thereof) provide the Company with a loan true and complete copy of any New Debt Commitment Letter, together with any related exhibits, schedules, supplements and term sheets (and a true and complete copy of any fee letter in connection therewith, with pricing terms and any other terms not relating to finance conditionality or availability of the Improvements Debt Financing being redacted). In the event that Parent or Merger Sub obtains Alternate Debt Financing, any reference in this Agreement to the “Financing Letters,” the “Debt Commitment Letter,” the “Debt Financing” or the “Financing” (and other like terms in this Agreement) will be deemed modified to refinance include such Alternate Debt Financing in lieu of the Improvements Debt Financing contemplated by the applicable existing Debt Commitment Letter.
(c) Parent and Merger Sub shall: (i) from time to time during at the Termrequest of the Company, keep the Company reasonably informed as to the status of its efforts to arrange the Debt Financing or any applicable Alternate Debt Financing; and (ii) promptly (and no later than one (1) Business Day) provide the Company with copies of all executed amendments, modifications or replacements of Debt Commitment Letters (it being understood that any amendments, modifications or replacements shall only be as permitted herein) related to the Financing. For such purpose onlyWithout limiting the generality of the foregoing, Tenant Parent and Merger Sub shall have promptly (and no later than one (1) Business Day) notify the rightCompany: (A) of any oral or written repudiation or termination or material breach or default by any party to the Financing Letters of which Parent, Merger Sub or their Affiliates become aware or any event or circumstance that, with Landlord’s prior written approvalor without notice, which shall not lapse of time or both, would reasonably be unreasonably withheld, conditioned or delayed, expected to assign all or part of Tenant’s interest under this Lease, as security give rise to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed material breach or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond default by any party to the request within twenty Debt Financing or Equity Financing; (20B) Business Daysof the receipt by Parent, Merger Sub or their Affiliates of any purported repudiation or termination of the request shall Financing Letters; or (C) if for any reason either Parent or Merger Sub in good faith no longer believes that one of Parent or Merger Sub will be deemed approved. In the event Tenant assigns able to obtain all or any portion of Tenant’s Interest the Financing. Parent shall provide any information reasonably requested by the Company relating to secure any of the circumstances referred to in the previous sentence as soon as reasonably practicable after the date that the Company delivers a loan permitted under this Section 14.2written request therefor to Parent. Notwithstanding the foregoing, then in no event shall Parent or Merger Sub permit or consent to any amendment, supplement or modification to, or any waiver of any provision under, the following shall apply:
Debt Commitment Letters (awhether the initial Debt Financing or Alternate Debt Financing) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
if such amendment, supplement, modification or waiver (bw) The Landlord shall not be required to sign any Trust Deed imposes new or the Noteadditional conditions, or otherwise become obligated thereunder;
expands any of the conditions, to the initial funding of the Debt Financing at Closing in a manner that would make such conditions more onerous than those set forth therein on the date hereof, (cx) No such lienwould reasonably be expected to materially and adversely affect the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letters, charge (y) would reasonably be expected to materially impair, materially delay or encumbrance shall constitute prevent the availability of all or a lien portion of the Debt Financing or encumbrance upon the Landlord’s fee title consummation of the transactions contemplated by this Agreement, or (z) would reduce the aggregate cash amount of the Debt Financing to an amount that, when taken together with other funds available to Parent and Merger Sub, is not sufficient to pay the aggregate consideration to be paid by Parent or Merger Sub at the Closing and all other amounts required to be paid at the Closing in connection with the Premises or their reversionary interest consummation of the transactions contemplated hereby and to pay all related fees and expenses required to be paid at the Closing in the Improvements;connection therewith.
(d) Any interest Notwithstanding anything in this Agreement to the Premises which contrary, except for the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before extension to the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended Offer contemplated by the number proviso to Section 1.01(b), each of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing Parent and Merger Sub understands and acknowledges and agrees that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease Agreement, Parent’s and Merger Sub’s obligation to restore consummate the Improvements following such damage Offer and the Merger is not in any way contingent upon or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) otherwise subject to Parent’s and Merger Sub’s consummation of the fair market value Financing or any other financing arrangements, Parent’s and Merger Sub’s obtaining of the Improvements at Financing or any other financing or the time availability, grant, provision or extension of the loan is entered intoFinancing or any other financing to Parent and Merger Sub.
Appears in 2 contracts
Sources: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
Financing. Tenant may seek (a) Parent shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Improvements from time Financing on the terms and conditions described in or contemplated by the Commitment Papers (including any “flex” provisions) to time during the Term. For such purpose onlyextent required, Tenant shall have when taken together with cash or cash equivalents held by Parent and the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayedCompany on the Closing Date and the other sources of funds available to Parent on the Closing Date, to assign refinance in full all amounts outstanding under the Company ABL Credit Agreement and the Senior Secured Indenture and to pay cash in lieu of fractional shares in accordance with Section 4.2(f), including using reasonable best efforts to (i) maintain in effect the Commitment Papers, (ii) satisfy (or, if determined advisable by Parent in its reasonable discretion, obtain the waiver of) on or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond prior to the request Closing Date all conditions to funding and availability of the Financing contained in the Commitment Papers and such definitive agreements for the Financing to be entered into pursuant thereto, in each case, that are within twenty the control of Parent, (20iii) Business Daysnegotiate and enter into definitive agreements with respect to the Financing contemplated by the Commitment Papers on terms and conditions not materially less favorable to Parent, taken as a whole, than those described in the request shall be deemed approvedCommitment Papers (including any “flex” provisions contained therein) on or prior to the Closing Date, (iv) enforce its rights under the Commitment Papers and (v) in the event that all conditions to funding and availability of the Financing contained in the Commitment Papers have been satisfied or waived, consummate the Financing contemplated by the Commitment Papers. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
Financing contemplated by the Commitment Papers becomes unavailable on the terms and conditions (aincluding any “flex” provisions) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title contemplated in the Premises or their reversionary interest Commitment Papers for any reason and such portion is necessary to refinance in full all amounts outstanding under the Improvements;
(d) Any interest in Company ABL Credit Agreement and the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedingsSenior Secured Indenture, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment pay cash in lieu of fractional shares in accordance with Section 4.2(f) and to pay the foreclosure of fees and expenses relating to the Trust Deed, Merger and the holder or beneficiary thereof Financing (A) Parent shall promptly notify Landlord the Company in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60B) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by TenantParent shall, and shall accompany such notice with a true copy cause each of its Subsidiaries to, use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such Trust Deed and event, alternative financing for any such portion from alternative sources (the Note secured thereby; and
(o“Alternative Financing”) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount not less than such unavailable and necessary funds and which exceeds seventy-five percent (75%1) of the fair market value of the Improvements at the time the loan is entered into.does not involve terms and conditions that,
Appears in 2 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.)
Financing. Tenant may seek Parent and Merger Subsidiary shall use their reasonable best efforts to obtain the proceeds of the Financing on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to (i) negotiate definitive agreements with respect to the Financing consistent with the terms and conditions contained therein, and (ii) satisfy on a loan timely basis all conditions in such definitive agreements the satisfaction of which are within the control of Parent or Merger Subsidiary. Parent and Merger Subsidiary shall use their reasonable best efforts to finance comply with their respective obligations, and enforce their respective rights, under the Improvements and Commitment Letter. Parent shall give the Company prompt notice of any material breach by any party to refinance the Improvements from time to time during Commitment Letter of which Parent has become aware or any termination of the TermCommitment Letter. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which Parent shall not be unreasonably withheldpermit any amendment or modification to, conditioned or delayed, to assign all any waiver of any material provision or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyremedy under, the “Trust Deed”)Commitment Letter if such amendment, modification or waiver materially increases the conditionality or materially delays the Financing. Landlord’s written approval The Company shall assist and cooperate with Parent and Merger Subsidiary in connection with their efforts to obtain the proceeds of the Financing, including providing, in accordance with the terms of Section 8.05, reasonably required information relating to the Company and its Subsidiaries to the financial institution or denial institutions providing the Financing and executing and delivering, and causing such Subsidiaries to execute and deliver, customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Financing as may be reasonably requested by Parent in connection with the Financing; provided that, no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument shall be provided to Tenant within twenty (20) Business Days effective until the Effective Time and none of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all Company or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following its Subsidiaries shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign pay any Trust Deed commitment or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s other similar fee or leasehold title (respectively) incur any other liability or reversionary interest unreimbursed out-of-pocket expense in connection with the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, Financing prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionEffective Time.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Telewest Global Inc), Merger Agreement (NTL Inc)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Leasehold Mortgagee;
(b) The Landlord Debt Financing on the terms and conditions described in or contemplated by the Debt Financing Commitment and shall not agree to any amendment or modification to be required to sign any Trust Deed or the Notemade to, or otherwise become obligated thereunder;
(c) No such lien, charge any waiver of any provision or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leaseremedy under, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) Debt Financing Commitment without the prior written consent of each Leasehold Mortgagee;
the Company if such amendments, modifications or waivers would or would reasonably be expected to (mw) The Trust Deed reduce the aggregate amount of the Debt Financing below the amount required to consummate the Merger and the other transactions contemplated hereby, (x) impose new or additional conditions to the receipt of the Debt Financing, (y) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (z) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Commitments (provided that Parent and Merger Sub may amend the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date of this Agreement so long as such action would not reasonably be expected to delay or prevent the Closing), including using reasonable best efforts to (i) maintain in effect the Debt Financing Commitment, (ii) satisfy on a timely basis all conditions and covenants applicable to Parent and Merger Sub in the Debt Financing Commitment (including by consummating the financing pursuant to the terms of the Equity Financing Commitment) and otherwise comply with its obligations thereunder, (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Financing Commitment (or terms and conditions no less favorable, in the aggregate, to Parent and Merger Sub (in the reasonable judgment of Parent) than the terms and conditions in the Debt Financing Commitment), (iv) in the event that all conditions in the Debt Financing Commitment (other than the availability or funding of any Equity Financing) have been satisfied, consummate the Debt Financing at or prior to Closing and (v) subject to compliance with the requirements of Section 10.09(b), enforce its rights under the Debt Financing Commitment in the event that all conditions in the Debt Financing Commitment (other than the availability or funding of any Equity Financing) have been satisfied, to cause the lenders and other persons providing Debt Financing to fund on the Closing Date the Debt Financing required to consummate the Merger and the other transactions contemplated hereby. Without limiting the generality of the foregoing, Parent and Merger Sub shall provide give the Company prompt notice (containing a reasonable description of the circumstances giving rise to the notified matter): (A) of any material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material breach or material default) by any party to the Debt Financing Commitment or definitive document related to the Debt Financing of which Parent or Merger Sub become aware; (B) of the receipt of any written notice or other written communication from any party to the Debt Financing Commitment with respect to any breach, default, termination or repudiation by any party to the Debt Financing Commitment or any definitive document related to the Debt Financing or any provisions of the Debt Financing Commitment or any definitive document related to the Debt Financing; and (C) if Parent or Merger Sub will not be able to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Financing Commitment or the definitive documents related to the Debt Financing; provided, that the Parent and Merger Sub shall be under no obligation to disclose any information that is subject to attorney client or similar privilege, but only if such privilege is asserted in good faith. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent shall, if requested by the Company, use its reasonable best efforts to arrange and obtain alternative debt financing from alternative debt sources in an amount sufficient to consummate the transactions contemplated by this Agreement upon terms and conditions not less favorable, taken as a whole, to Parent and Merger Sub (in the reasonable judgment of Parent) than those in the Debt Financing Commitment as promptly as practicable following the occurrence of such event but no later than the Business Day immediately prior to the institution of any proceedings Closing Date. To the extent Parent, at the Company’s request, seeks to foreclose the Trust Deed or of negotiations arrange and obtain alternative debt financing from alternative debt sources and such actions by Parent are determined to accept an assignment in lieu have constituted a breach of the foreclosure Debt Financing Commitment, the Company agrees that such result shall not be deemed to be a breach by Parent of its obligations under this Section 7.18 or otherwise under this Agreement. Notwithstanding anything contained in this Section 7.18 or in any other provision of this Agreement, in no event shall Parent or Merger Sub be required (x) to amend or waive any of the Trust Deed, terms or conditions hereof or (y) consummate the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have Closing any earlier than the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement final day of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionMarketing Period.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Pre Paid Legal Services Inc), Merger Agreement (Pre Paid Legal Services Inc)
Financing. Tenant may seek (a) Parent shall use its reasonable best efforts to obtain a loan the Financing on the terms and conditions described in the Financing Commitments, including using its reasonable best efforts (i) to finance negotiate definitive agreements with respect thereto on the Improvements terms and conditions contained in the Financing Commitments, (ii) to refinance satisfy all conditions applicable to Parent, or Merger Sub in such definitive agreements, (iii) to comply with its obligations under the Improvements from time Financing Commitments, (iv) to time during obtain alternative financing commitments on terms no less favorable to Parent, Merger Sub or the Term. For such purpose onlyCompany than the current Financing Commitments if the current Financing Commitments become unavailable, Tenant shall have the right, with Landlord’s prior written approval, which shall and (v) to not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security agree to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced amendment or modification to be made to, or any waiver of any material provision or remedy under the Financing Commitments, if such funds to Tenant pursuant to a promissory note and a trust deed amendment, modification, waiver or mortgage (collectively, remedy reduces the “Trust Deed”). Landlord’s written approval aggregate amount of the Financing or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain amends the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond conditions precedent to the request within twenty Financing in a manner that would reasonably be expected to delay or prevent the consummation of the Merger or make the funding of the Financing less likely to occur. Parent shall give the Company prompt notice upon becoming aware of any material breach by any party of the Financing Commitments or any termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies of all documents related to the Financing Commitments and the Financing (20) Business Daysother than any ancillary documents subject to confidentiality agreements, the request shall be deemed approvedincluding fee letters and engagement letters). In the event Tenant assigns that (i) all conditions in Sections 6.1 and 6.3 have been satisfied (or, with respect to certificates to be delivered at the Closing, are capable of being satisfied upon the Closing) at the time when the Closing would have occurred but for the failure of the Financing Commitments to be funded, (ii) the financing provided for by the Debt Commitments has been funded or Parent has received written notification that it will be funded at the Closing if the Buyer Group Commitments are funded at the Closing, and (iii) the Company has irrevocably confirmed that if the Financing is funded such that the Closing pursuant to Section 1.2 could occur, the Company is willing to waive all conditions in Section 6.2, then Parent shall enforce its rights under the Financing Commitments to cause the Financing Commitments to be funded at the Closing. If any portion of Tenant’s Interest the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letters, (A) Parent and Merger Sub shall promptly notify the Company and (B) Parent and Merger Sub shall use their reasonable best efforts to secure seek to arrange and obtain alternative financing from alternative sources on terms no less favorable to Parent, Merger Sub or the Company than the current Financing Commitments in an amount sufficient to consummate the merger which would not reasonably be expected to prevent, materially impede or delay the consummation of the transactions contemplated by this Agreement. Parent shall give the Company prompt notice of any material breach by any party to the Financing Commitments or of any condition not likely to be satisfied, in each case, of which Parent or Merger Sub becomes aware or any termination of the Financing Commitments. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative Financing, is not a loan permitted condition to Closing. In connection with its obligations under this Section 14.25.9, then Parent shall not be restricted from amending, modifying or replacing the following shall apply:
Debt Commitment Letters with new Financing Commitments, including through co-investment by or financing from one or more other additional parties (athe “New Financing Commitments”) Landlord will enter into if the same does not reduce the aggregate amount of Parent’s financing or amend the conditions to drawdown in a Lender Recognition Agreement with manner adverse to the Leasehold Mortgagee;Company’s interests hereunder or otherwise delay or prohibit consummation of the Merger or other transactions contemplated hereby.
(b) The Landlord Company shall provide, and shall cause its Subsidiaries and each of its and their respective Representatives, including legal and accounting, to provide, all cooperation reasonably requested by Parent and that is customary in connection with the arrangement of the Financing, and the other transactions contemplated by this Agreement, provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company, including (i) providing information as promptly as practicable relating to the Company and its Subsidiaries to the parties providing the Financing, (ii) participating in a reasonable number of meetings, drafting sessions and due diligence sessions in connection with the Financing, (iii) providing assistance in the preparation of (A) one or more offering documents or confidential information memoranda for any of the Debt Financing (including the execution and delivery of one or more customary representation letters in connection therewith) and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing and syndicating efforts for any of the Debt Financing, including providing (A) assistance in the preparation for, and participating in, meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies and (B) for the use of the Company’s logo in connection with such marketing and syndicating efforts (provided that such logo is used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and its or their marks), (v) executing and delivering (or obtaining from advisors), and causing its Subsidiaries to execute and deliver (or obtain from advisors), customary certificates (including solvency certificates), comfort letters, legal opinions or other documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Financing as may be reasonably requested by Parent in connection with the Financing and otherwise facilitating the pledge of collateral and providing of guarantees contemplated by the Debt Commitment Letter; provided, however, that no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the representation letters referred to above) shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to sign pay any Trust Deed commitment or other similar fee or incur any other liability in connection with the Financing prior to the Effective Time, and (vi) providing Parent with (A) customary pay-off letters with respect to the current credit facilities of the Company and its Subsidiaries and (B) recordable form lien releases, canceled notes and other documents reasonably requested by Parent prior to the Closing indicating that all Liens resulting from such credit facilities shall be satisfied, terminated and discharged on or prior to the Closing Date. The Company shall request, and Parent shall promptly, upon such request, reimburse Company for all reasonable and documented out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with the foregoing cooperation and shall indemnify and hold harmless the Company, its Subsidiaries, and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with such cooperation or the NoteFinancing. All material, non-public information regarding the Company and its Subsidiaries provided to Parent or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises Merger Sub or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination Representatives pursuant to this Lease) without Section 5.9 shall be kept confidential by them in accordance with the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior Confidentiality Agreements except for disclosure to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements potential financing sources as required in connection with any Improvements, including but not limited the Financing Commitments (and then subject to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructioncustomary confidentiality protections).
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Goldman Sachs Group Inc/), Merger Agreement (Waste Industries Usa Inc)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into Subject to the terms and conditions of this Agreement, each of Parent and Merger Subsidiary shall use, and shall cause their Affiliates to use, their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Debt Financing as promptly as practicable on the terms and conditions described in the Debt Commitment Letters, including using (and causing their Affiliates to use) their respective reasonable best efforts to: (i) maintain in effect the Financing Commitments, (ii) provide to the Company a Lender Recognition Agreement list of the information and the assistance required from the Company for Parent to prepare the Required Financial Information as promptly as practicable (and in any event not later than 10 Specified Business Days) after the date hereof; (iii) provide the Required Financial Information to the Debt Financing Sources as promptly as practicable after the date hereof, (iv) negotiate definitive agreements with respect thereto as promptly as practicable after the Leasehold Mortgagee;date hereof substantially on the terms and conditions contained in the Financing Commitments or, with respect to conditions relating to funding, on other terms no less favorable to Parent or Merger Subsidiary, which agreements shall be in effect no later than the Effective Time, (iv) satisfy, or cause their Representatives to satisfy, on a timely basis all conditions applicable to Parent, Merger Subsidiary or their respective Representatives in such definitive agreements to be satisfied by Parent, Merger Subsidiary or their respective Representative, and (v) cause the Debt Financing Parties and any other Persons providing Debt Financing to fund the Debt Financing at or prior to the Effective Time.
(b) The Landlord Parent shall not be required to sign any Trust Deed or the Noteagree to, or otherwise become obligated thereunder;
(c) No such lienpermit, charge any amendments or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedingsmodifications to, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Leasewaivers under, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) Financing Commitments without the prior written consent of each Leasehold Mortgagee;
the Company if such amendments, modifications or waivers would reduce the aggregate amount of the Debt Financing (mincluding by changing the amount of fees to be paid or original issue discount of the Debt Financing) The Trust Deed shall provide thatsuch that after giving effect to such amendment, the Parent would not have sufficient funds under the amended Financing Commitments, together with any cash on hand, to consummate the Merger, or impose new or additional conditions or otherwise expand the then existing conditions precedent to funding of the Debt Financing at or prior to the institution Effective Time, if such new or additional conditions or such expanded existing conditions would reasonably be expected to (i) prevent or materially delay or impair the ability of any proceedings Parent to foreclose consummate the Trust Deed Merger or (ii) adversely impact the ability of negotiations Parent or Merger Subsidiary to accept an assignment in lieu enforce its rights against the other parties to the Financing Commitments; provided that, for the avoidance of doubt, each of Parent and Merger Subsidiary may amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the foreclosure date hereof; provided further that, without derogating from any of the Trust DeedCompany’s other obligations under Section 6.08, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord Company shall have the right, but not the obligation, within sixty (60) days after receiving no obligation to comply with Section 6.08 of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements this Agreement in connection with such amendments.
(c) In the event that Parent determines that any Improvementsportion of the Debt Financing will not be available in the manner or from the sources contemplated in the Financing Commitments, including but (i) Parent shall promptly so notify the Company and (ii) Parent and Merger Subsidiary shall use their respective reasonable best efforts to arrange and obtain, and to negotiate and enter into definitive agreements with respect to, alternative financing from alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement that includes conditions to funding not limited materially less favorable to construction loansParent than those in the Financing Commitments, long term loans as promptly as practicable following the occurrence of such event (and refinancing permitted in any event no later than the Effective Time).
(d) Each of Parent and Merger Subsidiary acknowledges and agrees that neither the obtaining of the Debt Financing or any alternative financing, nor the completion of any issuance of securities contemplated by the terms of this Lease Debt Financing or any alternative financing, is a condition to the Closing.
(e) Parent shall contain (i) promptly furnish the written agreement Company complete, correct and executed copies of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days Financing Commitments and any amendment, modification or replacement of any default by Tenant Financing Commitments promptly upon their execution (provided, that provisions in such fee letter(s) related to fees and pricing may be redacted (none of which redacted provisions adversely affect the availability of, or impose additional conditions on any such loan and shall be given the opportunity to correct availability of, the default and assume Debt Financing at the loan(sclosing)), (ii) prior to initiation of foreclosure actions other than give the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord Company prompt written notice of any Trust Deed prior breach or threatened (in writing) breach by any party of any of the Financing Commitments or the Financing Commitment of which Parent or Merger Subsidiary becomes aware or any termination or threatened (in writing) termination thereof, (iii) after the receipt of any written notice or other written communication received from any Debt Financing Party, give the Company prompt written notice of any material dispute or disagreement between or among any parties to any Financing Commitment that would reasonably be expected to result in a breach under the Financing Commitment, (iv) give the Company prompt written notice if for any reason Parent or Merger Subsidiary has determined in good faith that it will not be able to obtain all or any portion of the Debt Financing on substantially the terms and conditions contemplated by the Financing Commitments, (v) promptly furnish any additional information reasonably requested in writing by the Company relating to the execution and/or recording circumstances in clauses (i) through (iv) of same by Tenant, this Section 7.04(e)) and shall accompany such notice with a true copy of such Trust Deed and (vi) keep the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction Company reasonably informed of the Improvements shall be available for restoration thereof status of its efforts to arrange the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage Debt Financing (or destructionany alternative financing).
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (NICE Ltd.), Merger Agreement (inContact, Inc.)
Financing. Tenant (a) Parent, Merger Sub and Merger LLC shall use reasonable best efforts to take, or cause to be taken, all such actions as may seek be necessary to arrange the Debt Financing on substantially the terms and conditions described in the Debt Commitment Letter, including (i) to negotiate and enter into the definitive agreements with respect thereto on the terms and conditions described in the Debt Commitment Letter (including, as necessary, any “flex” provisions contained in the Fee Letter) by the Closing Date and (ii) to satisfy or obtain the waiver of, on a loan timely basis, all conditions to finance obtaining the Improvements Debt Financing in accordance with the terms thereof and to refinance comply with all of the Improvements from time obligations applicable to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant Parent pursuant to a promissory note the Debt Commitment Letter and a trust deed or mortgage (collectivelythe definitive agreements related thereto. Parent, Merger Sub and Merger LLC shall use reasonable best efforts to cause the “Trust Deed”). Landlord’s written approval or denial shall be provided Lenders and other Persons to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain fund the information regarding Debt Financing required to consummate the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to Merger on the request within twenty (20) Business Days, the request shall be deemed approvedClosing Date. In the event Tenant assigns that all conditions to funding the commitments contained in the Debt Commitment Letter have been satisfied, Parent, Merger Sub and Merger LLC shall use reasonable best efforts to cause the Lenders and other Persons to fund the Debt Financing required to consummate the Transactions contemplated by this Agreement, pay related fees and expenses (including paying all commitment fees when due, for repaying or refinancing the Credit Agreement or other indebtedness of the Company) and satisfy all requirements applicable to Parent, Merger Sub or Merger LLC related to or arising out of the consummation of the transactions contemplated hereby on the date of Closing. Parent, Merger Sub and Merger LLC shall give the Company prompt notice of any breach (or threatened breach) or default (or threatened default) by any party to the Debt Commitment Letter or the definitive agreements related thereto of which any of Parent, Merger Sub or Merger LLC has become aware or any termination of the Debt Commitment Letter or such definitive agreements. In the event that any portion of the Debt Financing becomes unavailable, Parent, Merger Sub and Merger LLC shall use reasonable best efforts to arrange to obtain substitute financing as promptly as practicable in equivalent amounts commitments in respect of other financing for such portion of the Debt Financing from the same or alternative bona fide third-party financing sources on terms no less favorable to Parent, Merger Sub and Merger LLC as those contained in the Debt Commitment Letter, including with respect to the conditions precedent to funding of such financing that are in the aggregate, in respect of certainty of funding, are equivalent to (or more favorable to Parent, Merger Sub and Merger LLC than) the conditions precedent set forth in the Debt Commitment Letter, to replace the Debt Financing contemplated by such expired, replaced, terminated or unavailable commitments or agreements, and on terms that do not make the timely funding of the financing or the satisfaction of the conditions to obtaining the financing less likely to occur (“Alternative Financing”) and promptly notify the Company of the foregoing. If obtained, Parent, Merger Sub and Merger LLC shall deliver to the Company true and complete copies of all commitment letters, agreements (including copies of fee letters (provided that fees, “market flex” and other economic terms which do not affect the amount, availability or conditionality of any portion thereof may be redacted)) pursuant to which any such alternative source shall have committed to provide Parent, Merger Sub and Merger LLC with Alternative Financing, including the definitive agreements related thereto. Parent, Merger Sub and Merger LLC shall (i) keep the Company reasonably informed of to the status of their efforts to arrange the Debt Financing and (ii) provide the Company with final copies of the Debt Commitment Letter, the Fee Letter (provided that fees, “market flex” and other economic terms which do not affect the amount, availability or conditionality of any portion thereof may be redacted), and the definitive agreements related thereto or any debt commitment letter, fee letter and definitive agreements in connection with any Alternative Financing, if any, and (iii) provide the Company a reasonable opportunity to review all drafts of the Debt Commitment Letter, any debt commitment letter in connection with any Alternative Financing and, in each case, the definitive agreements related thereto and to approve the final versions of each of the foregoing.
(b) Parent, Merger Sub and Merger LLC shall not, without the Company’s prior written consent, permit any amendment or modification to, or any waiver of any provision or remedy under, the Debt Commitment Letter or any definitive agreements related thereto that (w) shall add any condition to obtaining the funding of the Debt Financing on the Closing Date, (x) shall reasonably be expected to (i) adversely affect the ability or likelihood of Parent, Merger Sub and Merger LLC timely consummating the transactions contemplated by this Agreement or (ii) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing less likely to occur or shall reduce the amount of the Debt Financing or (z) shall adversely affect the ability of Parent, Merger Sub or Merger LLC to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements relating thereto. Parent, Merger Sub and Merger LLC shall provide the Company with prompt written notice of the receipt of any written notice or other written communication from the Debt Financing Sources with respect to any Debt Financing Sources’ failure or anticipated failure to fund its commitments under the Debt Commitment Letter or definitive agreements in connection therewith. Parent, Merger Sub and Merger LLC shall not release or consent to the termination of the commitments and obligations of the lenders under the Debt Commitment Letter other than in accordance with the terms thereof, nor shall Parent, Merger Sub and Merger LLC terminate the Debt Commitment Letter.
(c) Parent shall have the right to substitute in equivalent amounts commitments in respect of other financing for all or any portion of Tenant’s Interest the Debt Financing from the same or alternative bona fide third party financing sources so long as such alternative sources would not reasonably be expected to secure a loan permitted under (i) adversely affect the ability or likelihood of Parent, Merger Sub and Merger LLC timely consummating the transactions contemplated by this Agreement, (ii) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing less likely to occur or (iii) adversely affect the ability of Parent, Merger Sub or Merger LLC to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements relating thereto (collectively with the Debt Financing, the “Available Financing” it being understood that for purposes of this Section 14.25.19, then for the following avoidance of doubt, Available Financing may include any offering of debt securities or incurrence of loans). Prior to the Closing Date, the Company shall apply:
(a) Landlord will enter into use its reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use its commercially reasonable efforts to cause its Representatives, including legal and accounting, to provide, in each case at Parent’s sole expense and on a Lender Recognition Agreement timely basis, the cooperation reasonably requested by Parent that is necessary, proper or advisable in connection with the Leasehold Mortgagee;
arrangement of the Debt Financing or any permitted replacement, amended, modified or Alternative Financing (bprovided that (i) The Landlord such requested cooperation does not unreasonably interfere with the ongoing operations of the Acquired Companies, (ii) such requested cooperation and information required to be provided by the Company is limited to information about the Company and its operations and (iii) neither the Company nor its Subsidiaries shall not be required to sign prepare any Trust Deed or information, including Required Information, that requires the Notecombination of information about the Company with any other Person, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance including the Parent). Such cooperation shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;include:
(i) The Landlord will accept performance under this Lease furnishing Parent and Merger Sub and their Debt Financing Sources, as promptly as reasonably practicable following Parent’s request, with such pertinent and customary information necessary to syndicate or complete the underwriting or private placement of Debt Financing as may be reasonably requested in writing by any Leasehold Mortgagee Parent regarding the business, operations, financial projections and prospects of the Acquired Companies as though is customary for investment grade public companies in connection with the same had been performed by Tenantarrangement or marketing of financings such as the Available Financing;
(jii) The time available unless the Debt Financing or any Alternative Financing shall have been fully syndicated or funded prior thereto, (A) furnishing to a Leasehold Mortgagee to initiate foreclosure proceedingsParent as promptly as reasonably practicable, and in no event later than (x) 20 calendar days after the end of the first three fiscal quarters of any fiscal year of the Company and 45 calendar days after the end of each fiscal year of the Company, unaudited balance sheets and income and cash flow statements (in each case without footnotes) of the Acquired Companies for such fiscal quarter or fiscal year and (y) 60 calendar days after the end of each fiscal year of the Company, audited balance sheets and income and cash flow statements of the Acquired Companies for such fiscal year, in each case, to proceed with foreclosure proceedings, or the extent reasonably required by Parent to obtain possession prepare pro forma financial statements of the leasehold interest type required by Regulation S-X and Regulation S-K promulgated under the Securities Act to syndicate or complete the offering(s) of debt securities contemplated by the Debt Commitment Letter or in connection with the Available Financing and the Transactions; (B) furnishing to Parent as promptly as reasonably practicable, but in any event no later than 90 calendar days after the end of each fiscal year of the Company, the audited balance sheets and income and cash flow statements of the Acquired Companies for the three most recent fiscal years ended at least 90 days prior to the Closing Date prepared in accordance with GAAP as required by Regulation S-X under the Securities Act; and (C) furnishing to Parent as promptly as reasonably practicable, and in no event later than 45 calendar days after the end of each subsequent fiscal quarter of the Company ending at least 45 days prior to the Closing Date (other than the fourth quarter), unaudited balance sheets and income and cash flow statements (in each case without footnotes) of the Acquired Companies for such fiscal quarter of the Company prepared in accordance with GAAP as required by Regulation S-X under the Securities Act (it being understood that clauses (B) and (C) of this Section 5.19(c)(ii) shall be deemed extended by satisfied upon the number filing with the SEC of days of delay occasioned by judicial restriction the Company’s 10-K or application or operation of law against any 10-Q, as applicable, to the extent such initiation or occasion by financial statements are contained therein) (the information, financial statements, pro forma financial statements business and other circumstances beyond such Leasehold Mortgagee’s controlfinancial data and financial information referred to above shall mean the “Required Information”);
(kiii) If two reasonably assisting Parent in the preparation of pro forma financial statements and other financial data and financial information of the Acquired Companies necessary to syndicate or more Leasehold Mortgagees exercise their rights under this Leasecomplete the underwriting or private placement of Debt Financing; it being understood that neither the Company nor its Subsidiaries shall be required to prepare any information, including Required Information, that requires the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevailcombination of information about the Company with any other Person, including the Parent);
(liv) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant using reasonable best efforts to this Lease) without obtain customary accountants’ comfort letters and consents of accountants to the prior written consent use of each Leasehold Mortgageetheir reports in any materials relating to the Available Financing;
(mv) The Trust Deed shall provide thatparticipating in a reasonable number of meetings (including one-on-one meetings with the parties acting as lead arrangers, prior to bookrunners, underwriters or agents for, and prospective lenders and purchasers of, the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu Available Financing and senior management and Representatives, with appropriate seniority and expertise, of the foreclosure of the Trust DeedCompany), the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commencedpresentations, road shows, due diligence sessions, drafting sessions and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements sessions with rating agencies in connection with any Improvements, including but not limited to construction loans, long term loans the Available Financing at times and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant dates reasonably acceptable to the California Civil Code Section 2924Company;
(nvi) Tenant reasonably assisting with the preparation of materials for rating agency presentations, bank information memoranda and similar documents required in connection with the Available Financing, by providing information about the Acquired Companies available to the Company and execution and delivery of customary representation letters in connection with bank information memoranda;
(vii) taking corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Available Financing and to permit the proceeds thereof to be made available to the Surviving Corporation or the Surviving Company, as applicable, immediately after the Effective Time;
(viii) reasonably assisting in the negotiation, preparation and execution of one or more credit agreements, indentures, underwriting agreements or purchase agreements, in each case, on terms that are reasonably requested by Parent in connection with the Available Financing; provided that no obligation of any Acquired Company under any such agreements or amendments shall give Landlord be effective until the Effective Time;
(ix) subject to confidentiality provisions, providing customary authorization letters to the Debt Financing Sources;
(x) cooperating reasonably with the Debt Financing Sources’ and Parent’s underwriters’ due diligence, to the extent reasonable;
(xi) using commercially reasonable efforts to arrange for customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing providing for the payoff, discharge, lien release and termination on the Closing Date of all indebtedness contemplated by the Debt Commitment Letter to be paid off, discharged and terminated on the Closing Date;
(xii) as soon as practicable, furnishing written notice to Parent if the Company shall have knowledge of (A) any facts as a result of which a restatement of any Trust Deed prior financial statements for such financial statements to comply with GAAP is probable or (B) that the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured therebyRequired Information ceases to be Compliant; and
(oxiii) All insurance proceeds arising providing within three (3) Business Days after any request therefor from damage or destruction Parent, all documentation and other available information with respect to the Acquired Companies that are required by regulatory authorities under the applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001 and requested by Parent at least ten (10) Business Days prior to the Closing Date; provided, however, that, no obligation of any of the Improvements Acquired Companies under any agreement, certificate, document or instrument (other than the authorization letters referred to above) shall be available for restoration thereof effective until the Effective Time and, none of the Acquired Companies nor their respective Representatives shall be required to pay any commitment or other fee or incur any other liability in connection with the Available Financing prior to the extent Tenant is obligated under Effective Time. Notwithstanding the terms of this Lease to restore the Improvements following such damage or destruction.
foregoing, (p1) No loan may be in an amount which exceeds seventy-five percent (75%) none of the fair market value Acquired Companies shall be required to pay any commitment or other similar fee or incur prior to the Closing Date any other liability or obligation in connection with the Debt Financing, (2) none of the Improvements at Acquired Companies nor their respective officers, directors or employees shall be required to execute or enter into or perform any agreement with respect to the time Debt Financing that is not contingent upon the loan is entered into.Closing occurring or that would be effective prior to the Closing (other than the authorization letters referred to above), or take any actions which would violate its organizational documents or applicable laws and (3) nothing shall obligate any of the Acquired Companies to provide, or cause to be provided, any legal opinion by its counsel, or to
Appears in 2 contracts
Sources: Merger Agreement (CBOE Holdings, Inc.), Merger Agreement (Bats Global Markets, Inc.)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i) maintain in effect the Financing Commitments and to satisfy the conditions to obtaining the Financing set forth therein, (ii) enter into a Lender Recognition Agreement definitive financing agreements with respect to the Financing as contemplated by the Financing Commitments (the “Financing Agreements”), so that the Financing Agreements are in effect as promptly as practicable but in any event no later than the Closing Date and (iii) consummate the Financing at or prior to Closing. Parent shall provide to the Company copies of all final documents relating to the Financing and shall keep the Company informed of the status of the financing process relating thereto. The Company shall, and shall cause the Company’s Subsidiaries to, provide such cooperation as may be reasonably requested by Parent in connection with the Leasehold Mortgagee;
(b) The Landlord Financing; provided that, the Company shall not be required to sign provide any Trust Deed such assistance which would interfere unreasonably with the business or operations of the Company and the Company Subsidiaries and provided, further, that, Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket third party costs incurred by the Company or any of the Company Subsidiaries in connection with such cooperation.
(b) If, notwithstanding the use of reasonable best efforts by Parent to satisfy its obligations under Section 6.18(a), any of the Financing Commitments or the NoteFinancing Agreements expire or are terminated prior to the Closing, in whole or otherwise become obligated thereunder;
(c) No such lienin part, charge or encumbrance for any reason, Parent shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though promptly notify the same had been performed by Tenant;
Company of such expiration or termination and the reasons therefor and (jii) The time available use its reasonable best efforts promptly to a Leasehold Mortgagee arrange for alternative debt financing (upon terms and conditions substantially comparable to initiate foreclosure proceedingsthose contained in such expired or terminated commitments or agreements, except with respect to proceed with foreclosure proceedingseconomic terms and conditions, or to obtain possession of the leasehold interest which shall be deemed extended no less favorable than those contained in such expired or terminated commitments or agreements) to replace the financing contemplated by the number of days of delay occasioned by judicial restriction such expired or application terminated commitments or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of sufficient to permit Parent to consummate the fair market value of the Improvements at the time the loan is entered intotransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Quantum Corp /De/), Merger Agreement (Advanced Digital Information Corp)
Financing. Tenant may seek (a) Subject to obtain the terms and conditions of this Section 5.14, Newco shall use reasonable best efforts to (i) cause the conditions and comply with the obligations that are set forth in the Newco Commitment Letter applicable to, and within the control of, or that require the cooperation of, Newco to be fulfilled (or waived, if deemed advisable by Newco) in a loan timely fashion in accordance with its terms, (ii) maintain the Newco Commitment Letter in effect until the earlier of the initial funding of the Newco Financing or the date that the Newco Financing Agreements (as defined below) become effective, (iii) negotiate definitive agreements with respect thereto, on the terms and conditions contained therein (including the “market flex” provisions) or on such other terms that would not be prohibited by Section 5.14(e) (the “Newco Financing Agreements”) and (iv) if all conditions precedent under the Newco Commitment Letter or the Newco Financing Agreements have been satisfied, on the Closing Date, cause the Newco Financing Sources to finance fund the Improvements Newco Financing.
(b) Subject to the terms and conditions of this Section 5.14, Athena shall use, prior to refinance the Improvements from time Amendment Effective Date, reasonable best efforts to time during (i) cause the Term. For conditions and comply with the obligations that are set forth in the Athena Commitment Letter applicable to, and within the control of or that require the cooperation of, Athena to be fulfilled (or waived, if deemed advisable by Athena) in a timely fashion in accordance with its terms, (ii) maintain the Athena Commitment Letter in effect until the earlier of the initial funding of the Athena Financing or the occurrence of the Amendment Effective Date, (iii) negotiate definitive agreements with respect to the Athena Commitment Letter, on the terms and conditions contained therein or on such purpose only, Tenant other terms that would not be prohibited by Section 5.14(f) (the “Athena Financing Agreements”) and (iv) if all conditions precedent under the Athena Commitment Letter or the Athena Financing Agreements have been satisfied cause the Athena Financing Sources to consummate the Athena Financing.
(c) Athena and Newco shall have each give the rightother prompt written notice (i) of any material breach (or threatened material breach) or default (or any event or circumstance that, with Landlord’s or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to their respective Commitment Letters or their respective Financing Agreements, (ii) of the receipt of any written notice of any actual or threatened withdrawal, repudiation or termination of either Financing by any of the respective Financing Sources, (iii) of the receipt of any written notice of any material dispute or disagreement between or among any of the parties to their respective Commitment Letters or their respective Financing Agreements, (iv) of any amendment or modification of, or waiver under, their respective Commitment Letters or their respective Financing Agreements or (v) if for any reason either believes in good faith that it will not be able to timely obtain all or any portion of the Newco Financing or the Athena Financing (to the extent the Athena Commitment Letter is still in effect), as applicable, on the terms and conditions and in the manner or from the sources contemplated by the Newco Commitment Letter or the Athena Commitment Letter, as applicable, or the Newco Financing Agreements or the Athena Financing Agreements, as applicable.
(d) Newco and Athena shall keep one another informed upon reasonable request and in reasonable detail, as soon as reasonably practicable (but in any event within three Business Days upon receipt of such reasonable request) of the status of their efforts to arrange the Newco Financing and the Athena Financing, as applicable. In addition, Athena shall keep Newco informed upon reasonable request and in reasonable detail, as soon as reasonably practicable (but in any event within three Business Days upon receipt of such reasonable request) of the status of the effectiveness of the Athena Credit Agreement Amendment. The terms and conditions of (i) the Newco Financing Agreements shall be reasonably satisfactory in form and substance to Athena and (ii) the Athena Financing Agreements and any Athena Credit Agreement Amendment, in each case to the extent such agreement becomes effective, shall be reasonably satisfactory in form and substance to Newco.
(e) Newco may not amend, modify, replace, waive or change any material provision in the Newco Commitment Letter or any of the Newco Financing Agreements in any material respect without obtaining the prior written approval, which shall consent of Athena (such consent not to be unreasonably withheld, conditioned or delayed) (it being understood that, among other things, any amendment, modification, replacement, waiver or change to the ability of Newco or any of its affiliates to approve the selection of financial institutions or other entities that will participate as term lenders under the Newco Commitment Letter or the Newco Financing Agreements, and the allocations of commitments to the lenders thereunder, shall be an amendment, modification, replacement, waiver or change of a material provision in a material respect). Notwithstanding anything to the contrary set forth herein, Newco may modify, supplement, or amend the Newco Commitment Letter or any of the Newco Financing Agreements, to assign all add lead arrangers, bookrunners, syndication agents, documentation agents, lenders or part similar entities that have not executed the Newco Commitment Letter as of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced the date hereof. In such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyevent, the term “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request Newco Commitment Letter” as used herein shall be deemed approved. In the event Tenant assigns to include such new or amended commitment letters (including all or any portion of Tenant’s Interest to secure a loan permitted under exhibits, schedules, and attachments thereto) and fee letters entered into in accordance with this Section 14.25.14(e), then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except term “Newco Financing” as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest used herein shall be deemed extended by to include any substitute financing obtained in accordance with this Section 5.14(e), and the number of days of delay occasioned by judicial restriction term “Newco Financing Agreements” shall be deemed to include the new or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior definitive agreements with respect to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment Newco Financing entered into in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection accordance with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction5.14(e).
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Ecolab Inc.), Merger Agreement (Apergy Corp)
Financing. Tenant may seek Without limiting any of the obligations of Sellers under Section 5.5 of this Agreement, Acquiror shall use reasonable best efforts to obtain take, or cause to be taken, all actions and do, or cause to be done, prior to the Closing Date, all things necessary, proper or advisable to arrange the Financing on the terms and conditions described in the Commitment Letters (including the “flex provisions” in the related fee letter), including using reasonable best efforts to, prior to the Closing Date, (i) maintain in effect the Debt Commitment Letter until the earlier of the date that the Closing has occurred and the date that it has been terminated in accordance with its terms and satisfy on a loan timely basis all conditions applicable to finance Acquiror obtaining the Improvements Financing set forth in the Commitment Letters, (ii) negotiate and enter into definitive agreements with respect thereto that are in form and substance reasonably satisfactory to refinance Acquiror and on the Improvements from time terms and conditions contemplated by the Debt Commitment Letter (including any related flex provisions) or on other terms in the aggregate not less favorable to time during Acquiror and the TermCompanies, in the aggregate, (iii) timely prepare the necessary offering circulars, private placement memoranda, or other offering documents or marketing materials with respect to the Debt Financing, and (iv) assist with the syndication activities contemplated by the Debt Commitment Letter. For such purpose only, Tenant Acquiror shall have the rightgive Sellers prompt notice (A) of any actual or threatened breach or default (or any event or circumstance that, with Landlord’s prior written approvalor without notice, which shall not lapse of time or both, would reasonably be unreasonably withheld, conditioned or delayed, expected to assign all or part of Tenant’s interest under this Lease, as security give rise to any Institutional Lender (a “Leasehold Mortgagee”breach or default) which has advanced such funds by any party to Tenant pursuant to a promissory note and a trust deed any Commitment Letter or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond definitive document related to the request within twenty Financing of which Acquiror becomes aware and which would reasonably be expected to result in Acquiror not receiving the Debt Financing or Equity Financing at the Closing, (20B) Business Daysif and when Acquiror becomes aware, the request shall be deemed approved. In the event Tenant assigns all or receives oral or written notice, that any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall Financing contemplated by any Commitment Letter may not be required available to sign any Trust Deed or consummate the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trusteetransactions contemplated hereby, and (C) of any lien which it creates, termination of any Commitment Letter. Acquiror shall expire keep Sellers informed on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate a reasonably current basis in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession reasonable detail of the leasehold interest status of their efforts to arrange the Financing. Acquiror shall be deemed extended (1) comply in all material respects with each Commitment Letter, and (2) except as contemplated by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this LeaseCommitment Letters, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modifiedpermit, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
Sellers, any amendment or modification to be made to, or any waiver of any provision or remedy under the Commitment Letters if such amendment, modification or waiver would (mx) The Trust Deed shall provide thatreduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount), prior (y) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the institution receipt of the Debt Financing in a manner that would reasonably be expected to (I) delay or prevent the Closing, (II) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (III) adversely impact the ability of Acquiror to enforce its rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto, the ability of Acquiror to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby (provided that the existence or exercise of “flex provisions” and/or the addition of any proceedings additional arranger, lead arranger, agent or other Lender (if the addition of such additional parties, individually or in the aggregate, would not be reasonably likely to foreclose (X) delay or prevent the Trust Deed or of negotiations to accept an assignment in lieu Closing, (Y) make the funding of the foreclosure Debt Financing (or satisfaction of the Trust Deedconditions to obtaining the Debt Financing) less likely to occur or (Z) adversely impact the ability of Acquiror to enforce its rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto, the holder ability of Parent to consummate the transactions contemplated hereby or beneficiary thereof the likelihood of consummation of the transactions contemplated hereby) shall notify Landlord not constitute an amendment, modification or waiver of the Commitment Letters requiring the prior written consent of Sellers hereunder or otherwise constitute a breach hereof). Notwithstanding anything to the contrary contained in writing that such proceedings this Agreement, nothing contained in this Section 6.6 or negotiations are to be commencedelsewhere in this Agreement shall require, and Landlord in no event shall have the right“reasonable best efforts” of Acquiror be deemed or construed to require, but not Acquiror to (A) seek the obligationEquity Financing from any source other than those counterparty to, within sixty or in any amount in excess of that contemplated by, the Equity Commitment Letter, (60B) days after receiving seek or accept Debt Financing on terms adverse to or less favorable than those set forth in the Debt Commitment Letter (including the “flex provisions”) provided on the date of such notice this Agreement, (C) waive any terms or conditions of this Agreement, (D) pay any fees in excess of those contemplated by the Commitment Letters (whether to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal secure waiver of any conditions contained therein or otherwise) or (E) enforce their rights against counterparties to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection Commitment Letters except with any Improvements, including but not limited respect to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement a draw down of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
Debt Financing as provided in clause (p) No loan may be in an amount which exceeds seventy-five percent (75%b) of the fair market value third sentence of Section 11.14. In no event shall Acquiror have any Liability for breach of its covenants or agreements in this Section 6.6 if the Improvements at the time the loan is entered intoClosing occurs.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Financing. Tenant may seek (a) Parent and Merger Sub shall use their respective reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Improvements Financing on the terms and conditions described in the Financing Commitments, including using reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) negotiate definitive agreements with respect to the Debt Financing on terms and conditions (including, as necessary, the “flex” provisions contained in the redacted fee letter accompanying the Debt Financing Letter) as specified in the Debt Financing Letter (any such agreements, the “Definitive Debt Agreements”), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions that are applicable to Parent or Merger Sub in the Debt Financing Commitment or the Definitive Debt Agreements, as applicable, and comply with its obligations thereunder, and (iv) upon the satisfaction or waiver of such conditions, consummate the Debt Financing at or prior to the Effective Time. In furtherance and not in limitation of the foregoing, in the event that all conditions to the Debt Financing Letter (and if Definitive Debt Agreements have been entered into, to such respective Definitive Debt Agreements) in each case, other than the availability of any of the financing contemplated under the Equity Financing Letter, have been satisfied or waived or upon the funding will be satisfied, and all of the conditions set forth in Section 8.1 (with respect to any funding of Debt Financing to occur at the Closing) have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the closing of the Debt Financing, the Offer Closing or the Closing, as applicable), Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under the Debt Financing Letter and Definitive Debt Agreements, as the case may be, including by suit or other appropriate proceeding.
(b) Parent shall have the right from time to time during to amend, modify or replace the Term. For such purpose onlyFinancing Commitments; provided, Tenant that Parent shall have the rightnot, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide thatthe Company, prior agree to, or permit, any amendment, modification or replacement of, or waiver under, the Financing Commitments or the definitive agreements relating to the institution Financing Commitments if such amendment, modification, replacement or waiver would (A) reduce the aggregate amount of the Financing (unless the Debt Financing or the Equity Financing is increased by a corresponding amount), (B) impose new or additional conditions or expand or amend any of the conditions precedent or contingencies to the funding on the Closing Date of the Financing that would reasonably be expected to (1) prevent, impede or delay the consummation of the Financing, the Offer Closing or the Closing, (2) make the funding of the Financing less likely to occur, or (3) adversely impact the ability of the Parent to enforce its rights against the other parties to the Financing Commitments or the definitive documents with respect thereto, or (C) reasonably be expected to (1) prevent, impede or delay the consummation of the Financing, the Offer Closing or the Closing, (2) make the funding of the Financing less likely to occur, or (3) adversely impact the ability of the Parent to enforce its rights against the other parties to the Financing Commitments or the definitive documents with respect thereto, without the prior consent of the Company; provided, further, that notwithstanding the foregoing, Parent may amend the Debt Financing Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Letter as of the date of this Agreement if the addition of such parties individually or in the aggregate would not reasonably be expected to delay or prevent the consummation of the Debt Financing or the Offer Closing. Parent shall deliver to the Company copies of any proceedings such amendment, modification, replacement or waiver promptly upon its execution thereof. If, notwithstanding the use of reasonable best efforts by Buyer to foreclose the Trust Deed or of negotiations to accept an assignment in lieu satisfy its obligations under this Section 7.15(a), any portion of the foreclosure of the Trust Deed, the holder Debt Financing or beneficiary thereof shall notify Landlord in writing that such proceedings Definitive Debt Documents is terminated or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder expires or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by otherwise becomes unavailable on the terms of this Lease and conditions (including the “flex” provisions contained in the redacted fee letter accompanying the Debt Financing Letter) specified in the Debt Financing Letter or the Definitive Debt Agreements, Parent shall contain promptly notify the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan Company and shall be given use its reasonable best efforts to arrange and obtain alternative financing from the opportunity same and/or alternative sources on terms and conditions not less favorable, taken as a whole, to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by TenantParent, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.than
Appears in 2 contracts
Sources: Merger Agreement (Michael Baker Corp), Merger Agreement (Michael Baker Corp)
Financing. Tenant may seek (a) Parent and Merger Subsidiary shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Financing contemplated by the Commitment Letters on or prior to the Closing Date on the terms and conditions and in the amounts described in the Commitment Letters (including any “flex” provisions) or such other terms and conditions that are more favorable to Parent and Merger Subsidiary, including (i) maintaining in effect the Commitment Letters and any Definitive Debt Financing Agreements (as defined below) and complying with its obligations thereunder, (ii) satisfying on a loan timely basis, taking into consideration the timing of the Closing and the completion of the Marketing Period, and in a manner that will not impede the ability of the parties hereto to finance consummate the Improvements Merger promptly upon the Closing Date, all conditions to the funding of the Financing set forth in the Commitment Letters and the Definitive Debt/Preferred Equity Financing Agreements that are within its control, (iii) using reasonable best efforts to refinance negotiate and enter into definitive debt or preferred financing agreements on the Improvements from time to time during terms and conditions contemplated by the Term. For such purpose only, Tenant shall have Debt Commitment Letter or the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this LeasePreferred Equity Commitment Letter, as security applicable (including any “flex” provisions) or such other terms and conditions that are more favorable to Parent and Merger Subsidiary (the “Definitive Debt/Preferred Equity Financing Agreements”), (iv) if the conditions under the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable, are satisfied, consummating the applicable Debt/Preferred Equity Financing and causing the Debt/Preferred Equity Financing Sources to consummate their respective Financing at the Closing, (v) complying with its obligations under the Commitment Letters and Definitive Debt/Preferred Equity Financing Agreements in a timely and diligent manner, taking into consideration the timing of the Closing and the completion of the Marketing Period and (vi) keeping the Company informed on a regular and current basis and in reasonable detail of the status of its efforts to arrange the Financing contemplated by the Commitment Letters and any other financing (including, by, upon reasonable request of the Company, promptly providing to the Company drafts of material definitive agreements for the Financing (and any amendments thereto entered into on or prior to the Closing) and giving the Company prompt notice of (i) any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material and adverse impact on the Financing contemplated by the Commitment Letters, (ii) any breach by any party to the Commitment Letters or Definitive Debt/Preferred Equity Financing Agreements of which Parent has become aware, (iii) the expiration or termination (or attempted or purported termination, whether or not valid) of the Debt Commitment Letter or the Preferred Equity Commitment Letter, (iv) any written or electronic (including email) notice or communication by any Debt/Preferred Equity Financing Source with respect to any Institutional Lender actual or threatened breach, default (a “Leasehold Mortgagee”or allegation thereof), repudiation by any party to any Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement or any refusal to provide, or stated intent that it will not provide, by any Debt/Preferred Equity Financing Source the full amount of the Debt/Preferred Equity Financing contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter for any reason, (v) which has advanced such funds Parent’s good faith belief, for any reason, that it may no longer be able to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns obtain all or any portion of Tenant’s Interest any Financing contemplated by the Commitment Letters on the terms and conditions described therein (after giving effect to secure any flex provisions), or (vi) receipt of any written notice or other written communication from any person with respect to any: (A) actual or potential breach, default, termination or repudiation by any party to the Debt Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement, (B) material dispute or disagreement between or among any parties to the Debt Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement (other than ordinary course negotiations) and (C) the failure of any condition to the Debt/Preferred Equity Financing to be satisfied. Any breach of the Commitment Letters, the Financing agreements, any Alternative Financing commitment or any Definitive Debt/Preferred Equity Financing Agreements by Parent or Merger Subsidiary shall be deemed a loan permitted under breach by Parent of this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;7.05.
(b) The Landlord Prior to the Closing, Parent shall not, and shall cause its Affiliates not to, agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its rights under, the Commitment Letters or Definitive Debt/Preferred Equity Financing Agreements without Parent’s prior written consent; provided that Parent may, without the Company’s prior written consent: (i) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Commitment Letter, the Preferred Equity Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreements that would not, and would not reasonably be required to sign any Trust Deed expected to, (A) reduce the amount of the Debt/Preferred Equity Financing contemplated by the Debt Commitment Letter or the NotePreferred Equity Commitment Letter, to an amount that will be less than the Required Amount, (B) adversely affect the ability of Parent and Merger Subsidiary to enforce its rights against any other party to the Debt Commitment Letter or the Definitive Debt Financing Agreements, in each case, as so amended, replaced, supplemented or otherwise modified, in each case, in accordance with this Agreement, relative to the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date hereof, (C) prevent, materially delay or impede the consummation of the Merger, the Debt/Preferred Equity Financing or the other transactions contemplated by this Agreement upon the satisfaction of the conditions set forth in the applicable Debt Commitment Letter or Preferred Equity Commitment Letter, or (D) impose any new or additional conditions, or otherwise become obligated thereunder;expand any of the conditions, to the availability and funding of Debt/Preferred Equity Financing as contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable, and (ii) amend, replace, supplement or otherwise modify the Debt Commitment Letter or the Preferred Equity Commitment Letter to add lenders, lead arrangers, book runners, syndication agents, purchasers or similar entities that have not executed the Debt Commitment Letter or Preferred Equity Commitment Letter as of the date of this Agreement. Upon any such amendment, replacement, supplement, modification or waiver, the terms “Debt Commitment Letter”, “Preferred Commitment Letter”, “Definitive Debt/Preferred Equity Financing Agreement”, as applicable, shall mean the Debt Commitment Letter, Preferred Equity Commitment Letter or Definitive Debt/Preferred Equity Financing Agreement, as applicable, as so amended, replaced, supplemented or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement, supplement or other modification of the Debt Commitment Letter or Preferred Equity Commitment Letter and/or any such waiver of a provision of the Debt Commitment Letter or Preferred Equity Commitment Letter.
(c) No such lienIf all or any portion of the Debt Financing or Preferred Equity Financing, charge as applicable, becomes unavailable, or encumbrance the Debt Commitment Letter or any of the Definitive Debt Financing Agreements shall constitute be withdrawn, repudiated, terminated or rescinded, regardless of the reason therefor, then Parent shall (i) use reasonable best efforts to arrange and obtain, as promptly as practicable, from the same and/or alternative debt or preferred equity financing sources, as applicable, alternative financing in an amount, together with the amount of Financing remaining available and cash and cash equivalent on hand at the Company and its Subsidiaries, sufficient to pay the Required Amount on the Closing Date, in each case, upon terms and conditions not materially less favorable, taken as a lien or encumbrance upon the Landlord’s fee title whole, than those set forth in the Premises Debt Commitment Letter or their reversionary interest the Preferred Equity Commitment Letter, as applicable (including, for the avoidance of doubt, any related “market flex” provisions) (“Alternative Financing”) and (ii) promptly notify the Company of such unavailability and the reason therefor; provided that such reasonable best efforts shall not require Parent to pay more fees, OIDs or incur an increase in pricing than the Improvements;
(d) Any interest pricing terms of the Debt Commitment Letter or Preferred Equity Commitment Letter, as applicable, as in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire effect on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on Agreement, taking into account any flex terms. In the Landlordevent any Alternative Financing is obtained in accordance with this Section 7.05(c), contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate references in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.Agreement to
Appears in 2 contracts
Sources: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Financing. Tenant may seek (a) Buyer shall use its reasonable best efforts to obtain a loan take, or cause to finance be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange the Improvements Debt Financing as promptly as practicable following the date of this Agreement and to refinance consummate the Improvements Debt Financing on the Closing Date, including the following:
(i) Buyer shall have the right from time to time during the Term. For such purpose onlyto amend, Tenant shall have the rightreplace, with Landlord’s prior written approvalsupplement or otherwise modify, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part waive any of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyits rights under, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty Debt Commitment Letter, and/or substitute other debt (20but not equity financing) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns for all or any portion of Tenantthe Debt Financing from the same financing sources or alternative financing sources (with Parent’s Interest consent), if any such amendment, replacement, supplement or other modification to secure or waiver of any provision of the Commitment Letter that amends the Debt Financing and/or substitution of all or any portion of the Debt Financing shall not (i) impose new or additional or expand upon or modify the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letter, (ii) prevent or impede or delay the consummation of the transactions contemplated by this Agreement, (iii) adversely impact the ability of Buyer to enforce its rights under the Debt Commitment Letter or (iv) provide for terms and conditions (including any “flex” provisions) that are, in the aggregate, less favorable to Buyer and the Sellers than those in the Debt Commitment Letter. Buyer shall not be permitted to reduce the amount of Debt Financing under the Debt Commitment Letter unless it provides an equity commitment letter of a loan permitted under this Section 14.2corresponding amount.
(ii) participation by senior management of Buyer in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
(iii) satisfying on a timely basis (or obtain a waiver of) all Financing Conditions that are within its control;
(iv) negotiating, executing and delivering Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions related thereto) and providing copies of drafts thereof exchanged with the Financing Sources to Parent, subject to any customary redaction;
(v) in the event that the conditions set forth in Sections 8.01 and 8.02 and the Financing Conditions have been satisfied or, upon funding would be satisfied, causing the Financing Sources to fund the full amount of the Debt Financing at or prior to the Closing (and, for the avoidance of doubt, Buyer acknowledges and agrees that (A) in the event that on the final day of the Marketing Period (x) all or a portion of the Debt Financing structured as high yield debt or contemplated to be sold pursuant to a Rule 144A transaction has not been issued or sold, (y) all conditions precedent to Buyer’s obligations hereunder shall have been satisfied or waived (other than those conditions which by their nature will not be satisfied until the Closing) and (z) the bridge financing contemplated by the Debt Commitment Letter is available, then on such date Buyer shall borrow under and use the following proceeds of the bridge financing to finance, in part, the Closing Date Payments and (B) Buyer shall apply:comply with any “securities demand” or similar provisions included in the Debt Commitment Letter or any related fee letter and use any proceeds from the sale of securities issued thereunder to finance, in part, the Closing Date Payments); and
(avi) Landlord will enter into a Lender Recognition Agreement with enforcing its rights under the Leasehold Mortgagee;Debt Commitment Letters.
(b) The Landlord Buyer shall not be required keep Parent informed in reasonable detail of the status of its efforts to sign arrange the Debt Financing. Buyer shall give Parent prompt notice (a) of any Trust Deed breach or the Noterepudiation, or otherwise become obligated thereunder;any anticipated or threatened breach or repudiation (including any event or circumstance that, without or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or repudiation), by any Party to the Debt Commitment Letters of which Buyer or its Affiliates becomes aware or (b) if, for any reason, Buyer no longer believes in good faith that it will be able to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letters on the terms described therein. Without limiting Buyer’s other obligations under this Section 5.15, if a Financing Failure Event occurs, Buyer shall (i) promptly notify Parent of such Financing Failure Event and the reasons therefor, (ii) in consultation with the Parent and the Sellers, use its reasonable best efforts to obtain (on terms as favorable to Buyer in the aggregate as are reasonably available for financings of the type contemplated by the Debt Commitment Letter in the debt markets at such time) alternative financing from alternative financing sources, in an amount sufficient to make the Closing Date Payments and any payments pursuant to Section 2.06 and consummate the transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event, and (iii) use its reasonable best efforts to obtain, and when obtained, provide Parent and the Sellers with a copy of, a replacement financing commitment in accordance with Section 5.15(a)(i) that provides for such alternative financing.
(c) No such lienAs promptly as practicable following the receipt of the financial information required by clause (A) of the definition of Financing Information, charge or encumbrance Holdings shall constitute prepare and file with the SEC a lien or encumbrance upon prospectus supplement to its currently effective Registration Statement on Form S-3 with respect to, and commence an offering of, the Landlord’s fee title in common stock of Holdings (the Premises or their reversionary interest in “Common Stock Offering”), which Buyer will use to pay a portion of the Improvements;Purchase Price for the Equity Interests on the Closing Date.
(d) Any interest As promptly as practicable following the consummation of the Common Stock Offering (and in any event following the receipt of the financial information required by clause (A) of the definition of Financing Information), Holdings shall prepare and file with the SEC and deliver to holders of its common stock a prospectus supplement for a rights offering on the terms and conditions described in the Premises which Parent Backstop generating gross proceeds to Holdings of no less than $125 million less the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before net proceeds received by Holdings pursuant to the date of expiration of this Lease;Common Stock Offering (the “Subscription Rights Offering”).
(e) The Trust Deed imposes no financial obligations Prior to the Closing Date, Buyer shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff with respect to the Common Stock Offering or the Subscription Rights Offering, and Buyer and Holdings shall provide Parent with copies of all correspondence between it and its Representatives, on the Landlordone hand, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect and the Landlord’s right SEC and its staff, on the other hand, relating to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements Common Stock Offering or the Premises;
(g) Except Subscription Rights Offering or the transactions contemplated hereby. Buyer and Holdings shall use their reasonable best efforts to respond as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire promptly as practicable to any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession comments of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior SEC with respect to the institution of any proceedings to foreclose Common Stock Offering or the Trust Deed Subscription Rights Offering or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructiontransactions contemplated hereby.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Aleris Corp), Purchase and Sale Agreement (Signature Group Holdings, Inc.)
Financing. Tenant may seek (a) As of the date of this Agreement, Parent has delivered to obtain the Company a loan true and complete copy of (i) an executed equity commitment agreement, dated as of the date hereof (the “Equity Commitment Agreement”), among Parent, Sub and Guarantor, pursuant to finance which Guarantor has agreed, according to the Improvements terms and subject to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayedconditions therein, to assign all or part of Tenant’s interest under this Leasefund an amount sufficient to satisfy the Financing Uses no later than immediately prior to the Closing (the “Equity Financing”), as security to any Institutional Lender (a ii) the Limited Guarantee and (iii) the Debt Financing Commitment Letters (the Equity Commitment Agreement and the Debt Financing Commitment Letters, collectively, the “Leasehold MortgageeFinancing Letters”) (and corresponding fee letters relating to the Debt Financing Commitment Letters redacted only in respect of specific fee amounts and specific “flex” terms, none of which has advanced affect the conditionality, availability or amount of the Debt Financing available on the Closing Date or remedies available with respect thereto) from the Debt Financing Sources, pursuant to which the Debt Financing Sources have agreed to provide, severally and not jointly, subject to the terms and conditions therein, the Debt Financing (such Debt Financing, together with the Equity Financing, collectively referred to as the “Financings”). The Company is an express third-party beneficiary with respect to, and is entitled to specifically enforce, the Equity Commitment Agreement.
(b) On the Closing Date, assuming receipt of the proceeds of the Financings in accordance with the terms of the Financing Letters, Parent will have sufficient available funds to Tenant pay the Aggregate Merger Consideration and any other cash amounts payable pursuant to, or in connection with the Transaction, including any obligations of the Surviving Corporation or its Subsidiaries that become due or payable by the Surviving Corporation and the Company Subsidiaries in connection with, or as a result of, the Transactions, and payment of all fees and expenses related to a promissory note and a trust deed or mortgage the foregoing (collectively, the “Trust DeedFinancing Uses”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;.
(c) No The Financing Letters and Limited Guarantee have not been terminated or otherwise amended, supplemented or modified in any respect as of the date of this Agreement. The Equity Commitment Agreement and the Limited Guarantee are legal, valid and binding obligations of each of the parties thereto (other than the Company), enforceable against such lienparties in accordance with their terms, charge subject to the Bankruptcy and Equity Exception. The Debt Financing Commitment Letters represent valid, binding and enforceable obligations of Parent and, to the knowledge of Parent, each other party thereto, to provide the Debt Financing, enforceable against such party in accordance with its terms, subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, there are no side letters or encumbrance shall other Contracts or arrangements relating to the Financings other than as expressly contained in the Financing Letters and delivered to the Company prior to the date hereof, in each case, that would affect the availabiltiy of the Debt Financing or make the Debt Financing materially less likely to occur. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, could constitute a lien default or encumbrance upon breach on the Landlord’s fee title part of Parent, Sub or Guarantor under any term of, or a failure of any condition under, the Financing Letters or otherwise result in any portion of the Financings contemplated thereby to be unavailable on the Closing Date. There are no conditions precedent or other contingencies to the availability of the Financings, other than the conditions set forth in this Agreement (with respect to the Equity Financing) and those explicitly set forth in the Premises Debt Financing Commitment Letters (the “Financing Conditions”) with respect to the Debt Financing. No event has occurred which, with or their reversionary interest without notice, lapse of time or both, would constitute a breach or default on the part of Parent or, to the knowledge of Parent, any other party thereto under the Financing Letters or the Limited Guarantee or would result in the Improvements;failure of a Financing Condition. Each of Parent and Sub has no reason to believe that it or any other party to the Financing Letters will be unable to satisfy on a timely basis any term thereof. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financings other than as expressly set forth in the Financing Letters.
(d) Any interest in the Premises which the Trust Deed establishes in a trusteeNeither Parent nor Sub has, and directly or indirectly, entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any lien which it createsbank or investment bank or other potential provider of debt or equity financing that prohibits such provider from providing or seeking to provide services, shall expire on including debt or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedingsequity financing, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements third person in connection with any Improvements, a transaction relating to the Company or the Company Subsidiaries (including but not limited to construction loans, long term loans and refinancing permitted by in connection with the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days making of any default by Tenant on any such loan and shall be given Competing Proposal) in connection with the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionTransactions.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (West Marine Inc)
Financing. Tenant may seek (a) Until the earlier of the Closing and the valid termination of this Agreement in accordance with Article IX (or, if earlier, the date that the requisite holders of indebtedness issued pursuant to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant Gold Credit Agreement shall have consented to or otherwise amended, amended and restated, refinanced or replaced the rightGold Credit Agreement to permit the transactions contemplated by the Transaction Documents, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender the SpinCo Financing and the Permanent SpinCo Financing (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelydate, the “Trust DeedGold Credit Agreement Consent Date”). Landlord’s written approval ), Gold shall use reasonable best efforts to take, or denial shall cause to be provided taken, all actions and to Tenant do, or cause to be done, all things reasonably necessary, proper or advisable to (i) maintain in effect the Commitment Letter, pursuant to which, among other things, the applicable Lenders have committed to provide Gold with debt financing in the applicable amount set forth therein (the debt financing contemplated by the Commitment Letter to be issued or incurred by Gold being referred to as the “Gold Financing”), (ii) comply on a timely basis with the obligations and satisfy on a timely basis the conditions within twenty the control of Gold, in each case, that are set forth in the Commitment Letter that are applicable to Gold, (20iii) Business Days enforce the rights of Tenant’s written request, which shall contain Gold under the information regarding Commitment Letter and (iv) obtain funding of the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Gold Financing no later than contemporaneously with or immediately prior to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;Merger.
(b) The Landlord shall not be required to sign In the event any Trust Deed funds in the amounts set forth in the Commitment Letter or the NoteGold Financing Agreements (as defined below), or otherwise any portion thereof, become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon unavailable on the Landlord’s fee title terms and conditions contemplated in the Premises Commitment Letter or the Gold Financing Agreements (other than as a result of the Gold Credit Agreement Consent Date), each of Mercury and Gold (in consultation in good faith with Mercury) shall, and shall cause their reversionary interest respective Subsidiaries (in the Improvements;
case of Mercury, limited to SpinCo and its Subsidiaries) to, use reasonable best efforts to cooperate to obtain promptly replacement debt financing for Gold from the same or alternative sources, in an aggregate amount, when added to the portion of the Gold Financing that is available and other available sources of liquidity, equal to $500,000,000 (d) Any interest in the Premises which the Trust Deed establishes in a trustee“Gold Alternative Financing”, it being understood and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right agreed that references herein to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by the Gold Financing shall include any Leasehold Mortgagee such Gold Alternative Financing and (ii) the Commitment Letter or Gold Financing Agreements shall include the commitment letter and definitive agreements, as though the same had been performed by Tenant;
(j) The time available applicable, in each case relating to a Leasehold Mortgagee to initiate foreclosure proceedingssuch Gold Alternative Financing), to proceed with foreclosure proceedings, or and to obtain possession a new financing commitment that provides for such financing; provided, that the terms of the leasehold interest Gold Alternative Financing must (A) not result in any material and adverse Tax consequences to Mercury and its Subsidiaries, including as to the Intended Tax Treatment of the transactions contemplated by the Transaction Documents (as determined by Mercury in good faith); provided, further, that any violation of the Intended Tax Treatment shall be deemed extended material and adverse for purposes of this Section 7.6(b), (B) unless otherwise agreed to in writing by ▇▇▇▇▇▇▇, be on terms and conditions not materially less favorable, taken as a whole, to Gold than those in the number of days of delay occasioned Commitment Letter or the Gold Financing Agreements, as applicable and (C) unless otherwise agreed to in writing by judicial restriction or application or operation of law against Mercury, not contain any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior conditions to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving consummation of such notice to purchase Gold Alternative Financing that are more onerous than the Trust Deed and conditions set forth in the indebtedness which it secures at a purchase price equal Commitment Letter or the Gold Financing Agreements, as applicable (subject, in each case, to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionIntended Tax Treatment).
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Modine Manufacturing Co), Merger Agreement (Modine Manufacturing Co)
Financing. Tenant may seek (a) From and after the date hereof until the earlier of the Completion and the termination of this Agreement pursuant to and in accordance with Section 9, in a timely manner so as not to delay the Completion, the Parent Parties shall use their reasonable best efforts to (i) take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable to consummate, no later than the date the Completion is required to occur pursuant to this Agreement, the Financing on the terms set forth in the Debt Agreement and (ii) satisfy or cause to be satisfied (or waived) on a timely basis all conditions to funding described in the Debt Agreement.
(b) In the event any portion of the Financing contemplated by the Debt Agreement becomes unavailable regardless of the reason therefor (as determined by Parent in its reasonable discretion after consulting with the Financing Sources), (i) Parent shall promptly notify the Company in writing of such unavailability and the reason therefor and (ii) Parent shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use their reasonable best efforts, to obtain a loan as promptly as practicable following the occurrence of such event, alternative debt financing for any such portion from alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with cash of Parent and its Subsidiaries (but not including the Company and its Subsidiaries) and the other sources of funds immediately available to finance Parent at the Improvements Completion to pay the Financing Amounts and that do not include any conditions to refinance the Improvements consummation of such alternative debt financing that are more onerous than the conditions set forth in the Debt Agreement. In addition to the foregoing, the Parent may also obtain Alternative Financing at its sole discretion which replaces the Financing, so long as the Parent is able to give the representations set forth in Section 6.2(h) with respect to such Alternative Financing as at the date such Alternative Financing becomes effective (with references to “date hereof,” the “Financing,” “Financing Sources” and “Debt Agreement” (and other like terms) in that section deemed to have been replaced with references to the date such Alternative Financing, the commitments thereunder and the agreements with respect thereto becomes effective).
(c) To the extent requested in writing by the Company from time to time during time, the TermParent Parties shall provide the Company with updates on a reasonably current basis on the status of the Financing. For The Parent Parties shall, (i) to the extent not publicly filed, provide copies of all executed credit agreements and indentures and any amendments, modifications, replacements or waivers relating to the Financing or any Indebtedness that is a takeout to the Financing (or notice that such purpose onlydocuments have been publicly filed) within one Business Day of execution thereof and (ii) provide prompt written notice (and in any event, Tenant shall have within two Business Days) of (A) the rightreceipt of any written notice or other written communication from any Financing Source with respect to such Financing Source’s failure or anticipated failure to fund its commitments under any definitive agreements relating to the Financing, with Landlord’s prior written approval(B) any material breach or material default by any party to such definitive agreements of which any Parent Party obtains knowledge, which shall not be unreasonably withheld, conditioned or delayed(C) any actual or, to assign all the knowledge of any Parent Party, threatened in writing, withdrawal, repudiation, or part termination of Tenant’s interest under this Lease, as security to any Institutional Lender of such definitive agreements or (a “Leasehold Mortgagee”D) which has advanced such funds to Tenant pursuant receipt of written notice or other written communication from any Financing Source relating to a promissory note and a trust deed material dispute or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond disagreement with respect to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns obligation to fund all or any portion of Tenant’s Interest the Financing at Completion (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with terms of the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed Financing or the Note, Debt Agreement); provided that in no event will the Parent Parties be under any obligation to disclose any information that is subject to attorney-client or otherwise become obligated thereunder;
similar privilege (c) No provided that the Parent Parties shall use their respective reasonable best efforts to cause any such lien, charge or encumbrance shall constitute information to be disclosed in a lien or encumbrance upon the Landlord’s fee title manner that would not result in the Premises or their reversionary interest in the Improvements;loss of any such privilege).
(d) Any interest Notwithstanding anything contained in this Agreement to the Premises which contrary, the Trust Deed establishes in a trusteeParent Parties expressly acknowledge and agree that their obligations under this Agreement, and any lien which it createsincluding their obligations to consummate the Completion, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate are not conditioned in any way manner upon the Landlord’s fee Parent Parties obtaining the Financing or leasehold title (respectivelyany other financing. To the extent Parent obtains Alternative Financing pursuant to Section 7.6(b) or reversionary interest in the Improvements amends, replaces, supplements, modifies or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire waives any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest Financing, references to the “Financing,” “Financing Sources” and “Debt Agreement” (and other like terms in this Agreement) shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any to refer to such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this LeaseAlternative Financing, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed commitments thereunder and the indebtedness which it secures at a purchase price equal to agreements with respect thereto, or the full amount then owing under said Trust DeedFinancing as so amended, including accrued interestreplaced, reasonable attorneys’ fee for the holder supplemented, modified or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionwaived.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Transaction Agreement (Amgen Inc), Transaction Agreement (Horizon Therapeutics Public LTD Co)
Financing. Tenant may (a) Parent and Merger Sub shall, and shall cause their respective Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms (including the market “flex” provisions) set forth in the Financing Letters (or on other terms and conditions that are acceptable to Parent, subject to the Prohibited Financing Modifications) no later than the Closing Date, including by using reasonable best efforts to (i) maintain (and cause Topco and the Guarantor to maintain) in effect and comply with the Financing Letters and, to the extent entered into prior to the Closing, the definitive agreements relating to the Financing (the “Definitive Financing Agreements”) in a timely (taking into account the anticipated timing of the Closing and the Marketing Period) and diligent manner (subject to Parent’s or Merger Sub’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in accordance herewith), (ii) negotiate and enter into the Definitive Financing Agreements with respect to the Debt Financing on the terms (including the market “flex” provisions) and subject to the conditions set forth in the Debt Commitment Letters (or on other terms and conditions that are acceptable to Parent, subject to the Prohibited Financing Modifications), (iii) satisfy on a timely basis (taking into account the anticipated timing of the Closing and the Marketing Period) (or obtain a waiver of) all conditions applicable to (and within the control of) Parent and Merger Sub in the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the transactions contemplated by this Agreement, including the Merger, consummate the Financing and cause the Financing Sources, the Guarantor and the other Persons committing to fund the Financing to fund the Financing at the Closing, (v) enforce its rights under the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements. Without limiting the generality of the foregoing, in the event that all conditions contained in the Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements (other than the consummation of the Merger and those conditions that by their nature are to be satisfied or waived at Closing) have been satisfied, Parent shall use its reasonable best efforts to cause the Financing Sources and the Guarantor to comply with their respective obligations thereunder, including to fund the Financing, including by enforcing its rights under the Financing Letters, if necessary. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.13 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (x) seek the Equity Financing from any source other than the Guarantor, or in any amount in excess of that contemplated by the Equity Commitment Letters, or (y) incur or pay any fees to obtain a loan to finance waiver of any term of the Improvements and to refinance Debt Commitment Letters or pay any material fees that are, in the Improvements from time to time during aggregate, in excess of those contemplated by the TermEquity Commitment Letter or the Debt Commitment Letters (including any market “flex” provisions contained therein). For such purpose only, Tenant shall have Without limiting the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayedgenerality of the foregoing, to assign all or part of Tenant’s interest under this Leasethe extent necessary in order to consummate the Closing on the Closing Date, Parent shall deliver a Pre-Marketing Notification (as security defined in the Debt Commitment Letters) and exercise its rights to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, reallocate the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain commitments as among the information regarding facilities contemplated by the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;Debt Commitment Letters.
(b) The Landlord Prior to the Closing Date, Parent and Merger Sub shall not be required to sign any Trust Deed or the Notenot, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide thatthe Company, subject to the last sentence of this paragraph, agree to or permit any termination of or amendment, replacement, supplement or modification, or any waiver of, any provision or remedy under, the Financing Letters or, to the extent entered into prior to the institution Closing, the Definitive Financing Agreements if such termination, amendment, replacement, supplement, modification or waiver would (A) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letters on the date of this Agreement unless the amount of the Debt Financing or Equity Financing is increased by a corresponding amount) such that Topco, Parent or Merger Sub (without, for the avoidance of doubt, any use of the cash or available borrowing capacity of the Company or any of its Subsidiaries) would not have sufficient available funds necessary to pay the Required Amounts, (B) impose new or additional (or adversely modify any existing) conditions to the consummation of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu portion of the foreclosure Financing, in each case, in a manner that would reasonably be expected to make the funding of the Trust DeedFinancing less likely to occur or prevent, hinder or delay the Closing, (C) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Financing Letters or, to the extent entered into prior to the Closing, the holder Definitive Financing Agreements or beneficiary thereof (D) otherwise reasonably be expected to prevent or hinder or materially delay the Closing (the foregoing clauses (A) through (D), collectively, the “Prohibited Financing Modifications”). Notwithstanding the foregoing, any amendment, supplement or modification to effectuate any market “flex” terms contained in the Debt Commitment Letters and/or Redacted Fee Letters provided as of the date hereof or to add or replace lenders, lead arrangers, bookrunners, syndication agents or other similar entities (or titles with respect to such entities) thereto shall notify Landlord in writing that such proceedings or negotiations are to be commenced, permitted and Landlord shall have not require written consent of the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal Company. Parent shall promptly deliver to the full amount then owing Company copies of any written amendment, modification, supplement, consent or waiver to or under said Trust Deedany Financing Letter, including accrued interestany related Redacted Fee Letter (which may be redacted in a fashion consistent with the Redacted Fee Letters) or, to the extent entered into prior to the Closing, the Definitive Financing Agreements promptly upon execution thereof.
(c) Parent shall, upon the Company’s reasonable attorneys’ fee request, keep the Company informed on a reasonably prompt basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and, upon the Company’s reasonable request, provide to the Company complete, correct and executed copies of the material definitive documents for the holder or beneficiary, Debt Financing. Parent and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant Merger Sub shall give Landlord the Company prompt written notice of (i) any Trust Deed material breach, default, termination, cancellation or repudiation by any party to any of the Financing Letters or, to the extent entered into prior to the execution and/or recording Closing, the Definitive Financing Agreements, of same which Parent or Merger Sub becomes aware, (ii) the receipt by TenantParent or Merger Sub of any written notice or other written communication from any Financing Source or any party to the Equity Commitment Letter with respect to any (A) material breach, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage default, termination, cancellation or destruction repudiation by any party to any of the Improvements shall be available for restoration thereof Financing Letters or, to the extent Tenant is obligated under entered into prior to the terms Closing, any Definitive Financing Agreements of this Lease any provisions of the Financing Letters or, to restore the Improvements following such damage extent entered into prior to the Closing, any Definitive Financing Agreements or destruction(B) material dispute or disagreement between Parent and any Financing Sources or among any parties to any of the Financing Letters or any definitive document related to the Financing, in each case regarding the Financing, and (iii) the occurrence of an event or development that could reasonably be expected to adversely impact the ability of Parent or Merger Sub to obtain all or any portion of the Financing necessary to fund the Required Amount on the Closing Date. Additionally, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in the immediately preceding sentence, subject to applicable legal privilege or confidentiality obligations.
(pd) No loan may If all or any portion of the Debt Financing becomes unavailable on the terms and conditions (including any applicable market “flex” provisions) contemplated by the Debt Commitment Letters (other than (i) as a sole result of the Company’s breach of this Agreement or (ii) if and for so long as the Company is in breach of its obligations under Agreement and such breach would be the sole cause of the conditions set forth in Section 7.1 or Section 7.2 not to be satisfied) and such portion is necessary to fund the Required Amount on the Closing Date, (i) Parent shall promptly notify the Company in writing of such unavailability and the reason therefor and (ii) Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain, as promptly as practicable, alternative financing from the same or alternative sources in an amount sufficient, together with the remaining available Financing to fund the Required Amount on the Closing Date (“Alternative Debt Financing”); provided that Parent shall not be required to arrange or obtain any Alternative Debt Financing having terms and conditions (including market “flex” provisions) that are less favorable to Parent and Merger Sub (or their respective Affiliates) than the terms and conditions set forth in the Debt Commitment Letters and the Redacted Fee Letters. Parent shall deliver to the Company forthwith if it obtains the same true and complete executed copies of any commitment letters (including related fee letters) with respect to any Alternative Debt Financing (which exceeds seventy-five percent fee letters may be redacted in a fashion consistent with the Redacted Fee Letters).
(75%e) For purposes of this Agreement, references to (x) the fair market value of “Financing” shall include the Improvements at financing contemplated by the time Financing Letters as permitted to be amended, modified, supplemented, waived or replaced by this Section 6.13 and any Alternative Debt Financing, (y) the loan is entered into“Debt Commitment Letters” shall include such documents as permitted to be amended, modified, supplemented, waived or replaced by this Section 6.13 and any commitment letter or other binding documentation with respect to any Alternative Debt Financing and (z) “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letters as permitted to be amended, modified, supplemented, waived or replaced by this Section 6.13 and any Alternative Debt Financing.
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Cornerstone Building Brands, Inc.)
Financing. Tenant may seek (a) Parent shall use its reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Improvements from time financing necessary to time during consummate the Term. For such purpose onlyTransactions (the "Debt Financing") on the terms and conditions described in the Debt Commitment Letter, Tenant shall have including using reasonable best efforts to (i) satisfy on a timely basis all terms, covenants and conditions set forth in the right, Debt Commitment Letter; (ii) enter into definitive agreements with Landlord’s respect thereto on the terms and conditions contemplated by the Debt Commitment Letter; (iii) enforce its rights under the Debt Commitment Letter; and (iv) consummate the Debt Financing at or prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request Effective Time. Parent will furnish correct and complete copies of all such definitive agreements to the Company promptly upon their execution.
(b) Parent shall keep the Company informed with respect to all material activity concerning the status of the Debt Financing contemplated by the Debt Commitment Letter and shall give the Company prompt notice of any material adverse change with respect to such Debt Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within twenty (20) two Business Days, if at any time (i) any Debt Commitment Letter shall expire or be terminated for any reason, (ii) any financing source that is a party to any Debt Commitment Letter notifies Parent that such source no longer intends to provide financing to Parent on the request shall terms set forth therein, or (iii) for any reason Parent no longer believes in good faith that it will be deemed approved. In the event Tenant assigns able to obtain all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2the Financing contemplated by the Debt Commitment Letter on the terms described therein. Parent shall not, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord and shall not be required to sign permit any Trust Deed or the Noteof its Affiliates to, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;the Company, take or fail to take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to breach or make untrue any representation or warranty contained in the Commitment Letters or otherwise impair, delay or prevent consummation of the Financing contemplated by any of the Debt Commitment Letter. Parent shall not amend or alter, or agree to amend or alter, any Debt Commitment Letter in any manner that would prevent or materially impair or delay the consummation of Transactions without the prior written consent of the Company.
(mc) The Trust Deed If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter or any Debt Commitment Letter shall be terminated or modified in a manner materially adverse to Parent for any reason, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions ("Alternate Financing") and to obtain, and, if obtained, will provide thatthe Company with a copy of, a new financing commitment that provides for at least the same amount of financing as such Debt Commitment Letter as originally issued and on terms and conditions (including termination rights and funding conditions) no less favorable in the aggregate to Parent or Merger Sub than those included in such Debt Commitment Letter (the "New Commitment Letter"). To the extent applicable, Parent shall use its reasonable best efforts to take, or cause to be taken, all things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Commitment Letter, including using reasonable best efforts to (i) satisfy on a timely basis all terms, covenants and conditions set forth in the New Commitment Letter; (ii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the New Commitment Letter; (iii) enforce its rights under the New Commitment Letter; and (iv) consummate the Alternate Financing at or prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionClosing.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Lyondell Chemical Co), Agreement and Plan of Merger (AI Chemical Investments LLC)
Financing. Tenant may seek (a) The Purchaser shall use reasonable best efforts to obtain the Debt Financing on or prior to the Closing Date on the terms and conditions described in the Debt Commitment Letter (as the same may be amended, modified or replaced in accordance with this Section 8.08), including its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the financing documents on terms contained in the Debt Commitment Letter (including any “flex” provisions related thereto); (iii) satisfy on a loan timely basis (taking into account the expected timing of the Marketing Period), or obtain a waiver of, the conditions to finance the Improvements Debt Commitment Letter that are within the Purchaser’s control (but excluding any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information as required under Section 7.08 or the Company’s or the Seller’s breach of any of their respective other obligations under this Agreement); (iv) subject to the terms of the Debt Commitment Letter and upon the satisfaction of the conditions set forth in the Debt Commitment Letter, enforce its rights to refinance consummate the Improvements from time Debt Financing or to time during cause the TermDebt Financing Sources and the other persons committing to fund the Debt Financing to fund the Financing at the Closing under the Debt Commitment Letter (provided, however, that in no event shall reasonable best efforts include any obligation on the part of Purchaser or any of its Affiliates to commence or thereafter to commence any litigation, arbitration, action or other adjudicatory or legal proceeding against any Debt Financing Source); and (v) upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, including using its reasonable best efforts to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing. For The Purchaser shall not permit or agree to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter if such purpose onlytermination, Tenant shall amendment, modification, waiver or replacement (A) reduces (or would have the righteffect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount), unless the representation and warranty set forth in Section 6.08 hereof (as though made at the time of the effectuation of such termination, amendment, modification, waiver or replacement) shall remain true and correct; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Debt Financing (or satisfaction of the conditions to the Debt Commitment Letter that are in the Purchaser’s control) on the Closing Date or (y) adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or solely to the extent definitive loan agreements are entered into prior to the Closing Date, the definitive agreements with Landlord’s prior written approval, which respect thereto; provided that (i) the Purchaser shall not be unreasonably withhelddeemed to have violated this Section 8.08 if the Purchaser shall have (A) provided prior written notice to the Seller of any termination, conditioned amendment, modification, waiver or delayedreplacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 8.08 and (B) demonstrated (to assign the reasonable satisfaction of the Seller) that it has other funds available to it (on conditions not materially less favorable in the aggregate to the Purchaser than the conditions to the Debt Commitment Letter) that are sufficient to pay all or part of Tenant’s interest under this Lease, as security other amounts required to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant be paid by the Purchaser pursuant to this Agreement and in connection with the transactions contemplated by this Agreement, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a promissory note and a trust deed breach of (or mortgage (collectively, the “Trust Deed”)notice under) this provision or any other provision of this Agreement. Landlord’s written approval or denial Purchaser shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond promptly deliver to the request within twenty (20) Business DaysSeller copies of any such termination, amendment, modification, waiver or replacement of the request shall be deemed approvedDebt Commitment Letter. In no event shall the event Tenant assigns all Purchaser have any liability for breach of its covenants or any portion of Tenant’s Interest to secure a loan permitted under agreements in this Section 14.2, then 8.08 if the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;Closing occurs.
(b) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, the Purchaser shall (i) promptly notify the Seller of such failure and the reasons therefor and (ii) use its reasonable best efforts to arrange and obtain alternative financing from the same or alternative sources in an amount sufficient, when added to the portion of the Debt Financing being replaced that is still available, to consummate the transactions contemplated hereby with terms and conditions that are not materially less favorable to the Purchaser, in the aggregate, than the terms and conditions set forth in the Debt Commitment Letter (giving effect to any applicable flex provisions), except as agreed by the Purchaser, as promptly as practicable following the occurrence of such event (the “Alternative Debt Financing”). The Landlord Purchaser shall not as soon as reasonably practicable deliver a true, correct and complete copy of each alternative financing commitment (collectively, a “New Debt Commitment Letter”) to the Company. Any reference in this Agreement to the “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter on the date hereof, as permitted to be required amended, modified or replaced (in whole or in part) by this Section 8.08, including any Alternative Debt Financing, and references to sign “Debt Commitment Letter” shall include such debt commitment letters as permitted to be amended, modified or replaced (in whole or in part) by this Section 8.08, including any Trust Deed or the Note, or otherwise become obligated thereunder;New Debt Commitment Letter.
(c) No such lienPrior to the Closing, charge or encumbrance the Purchaser shall constitute a lien or encumbrance keep the Company reasonably informed, upon the Landlord’s fee title in request of the Premises or their reversionary interest in Company, of the Improvements;
(d) Any interest in status of its efforts to arrange the Premises which Debt Financing and shall give the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
Company prompt notice: (i) The Landlord will accept performance under this Lease of any breach of any material provisions of any of the Debt Commitment Letter or definitive document related to the Debt Financing by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available party to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, any Debt Commitment Letter or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior definitive document related to the institution Debt Financing of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deedhas Knowledge, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof each case to the extent Tenant is obligated under such breach could reasonably be expected to delay or prevent the terms of this Lease to restore the Improvements following such damage or destruction.
Closing, and (p) No loan may be in an amount which exceeds seventy-five percent (75%ii) of the fair market value receipt of any written notice or other written communication from any Debt Financing Source with respect to any (A) actual or potential breach, default, termination or repudiation by any party to any Debt Commitment Letter or any definitive document related to the Debt Financing or any provisions of the Improvements Debt Commitment Letter or (B) dispute or disagreement between or among any parties to any Debt Commitment Letter with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at the time the loan is entered intoClosing.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Financing. Tenant (a) Parent shall use reasonable best efforts to take (or cause to be taken) all actions necessary, proper or advisable to arrange and consummate the Debt Financing on a timely basis on the terms and subject to the conditions described in the Debt Commitment Letter and the Fee Letters (including the “flex” provisions) to the extent the proceeds thereof are needed to consummate the transactions contemplated by this Agreement. Parent shall use its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter and comply with its obligations and conditions thereunder, (ii) negotiate and enter into definitive agreements on a timely basis with respect to the Debt Financing on terms and conditions (including “flex” provisions) contained in the Debt Commitment Letter or otherwise no less favorable to Parent than those contained in the Debt Commitment Letter (the “Financing Agreements”), (iii) satisfy (or have waived) on a timely basis all conditions and covenants applicable to Parent in the Debt Commitment Letter that are within its control at or prior to the Closing (including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing), and otherwise comply in all material respects with its obligations under the Debt Commitment Letter (including the Financing Agreements), (iv) enforce all its respective rights under the Debt Commitment Letter and (v) except to the extent Parent otherwise has cash resources at Closing to fund its payment obligations in full hereunder, upon satisfaction of the conditions set forth in the Debt Commitment Letter (or waiver thereof), consummate the Debt Financing at or prior to the Closing. Parent shall not permit any amendment, supplement or modification to be made to, or any waiver by Parent of any provision or remedy under the Debt Commitment Letter or any Financing Agreement if such amendment, supplement, modification or waiver expands on the conditions precedent or contingencies to the funding on the “Closing Date” of the Debt Financing as set forth in the Debt Commitment Letter as in effect on the date of this Agreement, in a manner that would reasonably be expected to prevent, impair or materially delay the consummation of the transactions contemplated by this Agreement; provided that Parent may seek replace, amend, supplement or modify the Debt Commitment Letter to add agents, co-agents, lenders, arrangers, joint bookrunners, managers or other entities that have not executed the Debt Commitment Letter as of the date hereof in accordance with the provisions therein. Parent shall promptly deliver to the Company true and complete copies of any such replacement, amendment, supplement, modification or waiver. For purposes of this Section 6.09, references to “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as permitted to be amended or modified by this Section 6.09 and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or substituted by this Section 6.09.
(b) In the event any funds in the amounts set forth in the Debt Commitment Letter or the Financing Agreements, or any portion thereof, become unavailable on the terms and conditions contemplated in the Debt Commitment Letter (including the “flex” provisions set forth in the Fee Letters) or the Financing Agreements, Parent shall (a) give prompt notice to the Company and (b) use its reasonable best efforts to arrange and obtain alternative financing from alternative sources on terms and subject to conditions that are not materially less favorable, taken as a loan whole, to finance Parent than those set forth in the Improvements Debt Commitment Letter (including the “flex” provisions set forth in the Fee Letters) as in effect on the date hereof, in an amount sufficient, when combined with cash on hand and borrowings under any existing credit facilities or other financing arrangements, to refinance consummate the Improvements Merger and the other transactions contemplated by this Agreement as promptly as practicable after the occurrence of such event. Notwithstanding anything to the contrary contained in this Agreement, Parent shall have the right from time to time during to substitute other committed debt financing or the Term. For such purpose onlyproceeds of consummated debt or equity transactions, Tenant shall have the rightor available cash or cash equivalents, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns for all or any portion of Tenant’s Interest the Debt Financing from the same and/or any alternative financing source; provided, that, in the case of committed debt financing, any such substitution shall not expand upon in any material respect the conditions precedent or contingencies to secure the funding on the “Closing Date” of the Debt Financing as set forth in the Debt Commitment Letter (including the “flex” provisions set forth in the Fee Letters) as in effect on the date of this Agreement in a loan permitted manner that would reasonably be expected to prevent, impede or materially delay the consummation of the transactions contemplated by this Agreement. In such event, the term “Debt Commitment Letter” as used herein shall be deemed to include the new commitment letter (the “New Debt Financing Commitment”), if any, entered into in accordance with this Section 6.09(b) (any financing arranged under this Section 14.26.09(b) to substitute for all or any portion of the Debt Financing or if any portion of the Debt Financing becomes unavailable shall be referred to as the “Alternate Debt Financing”). Parent will provide the Company with a true, then complete and correct copy of any New Debt Financing Commitment obtained by Parent in connection with an Alternate Debt Financing promptly following the following execution thereof (other than fees and other information redacted from such agreements that is consistent with the information redacted from the Fee Letters as permitted by Section 3.12(a)). For the avoidance of doubt, if the Debt Financing or the Alternate Debt Financing, as applicable, is available and the conditions to Closing set forth in Section 7.01 and Section 7.03 have been satisfied or waived (other than those conditions that by their nature will be satisfied (or waived) at the Closing, subject to satisfaction or waiver of such conditions at the Closing), Parent shall apply:use its reasonable best efforts to take all actions within its control necessary to incur the Indebtedness provided under the Debt Financing or the Alternate Debt Financing, as applicable, to consummate the Merger, to the extent the proceeds thereof are needed to consummate the Merger. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.09(b) shall require, and in no event shall the reasonable best efforts of Parent be deemed or construed to require, Parent to (i) bring any enforcement action, including commencing or filing any Legal Proceeding, against any Debt Financing Source to enforce its rights under the Debt Commitment Letter or (ii) pay any fees in excess of those contemplated by the Debt Commitment Letter (whether to secure waiver of any conditions contained therein or otherwise); provided, that Parent shall pay all fees required by the Debt Commitment Letter as they become due.
(ac) Landlord Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing (or replacement thereof) as the Company may reasonably request, and shall provide the Company with true and complete copies of all Financing Agreements entered into prior to the Closing Date and, as the Company 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 in accordance with Section 6.09(a); provided, further, that in no event will enter into Parent be under any obligation to disclose any information that is subject to attorney-client or similar privilege if Parent shall have used its reasonable best efforts to disclose such information in a Lender Recognition way that would not waive such privilege. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice of any material breach or default by any party to any of the Debt Commitment Letter or Financing Agreements of which Parent becomes aware.
(d) Parent acknowledges and agrees that the obtaining of the Debt Financing, or any Alternate Debt Financing, is not a condition to Closing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Debt Financing or any Alternate Debt Financing.
(e) The Company shall use its reasonable best efforts to provide to Parent, on a reasonably timely basis, all cooperation and assistance as may be reasonably requested by Parent that is customary in connection with the Leasehold Mortgagee;
arrangement, syndication and consummation of the Debt Financing and repayment of Existing Indebtedness of the Company and its Subsidiaries, including by using its reasonable best efforts to (bi) The Landlord provide reasonable cooperation with the marketing efforts of Parent and lenders or initial purchasers for any of the Debt Financing, including using reasonable best efforts, upon reasonable advance notice, to cause its Representatives (including members of senior management and advisors of the Company and its Subsidiaries) to be available to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions, and sessions with rating agencies, (ii) assist with the preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda (to the extent relating to the Company and its Subsidiaries), road show presentations and similar documents reasonably necessary or advisable in connection with the Debt Financing, including the preparation and furnishing in a reasonably timely fashion of all financial statements and other customary data to be included in connection therewith (including all audited financial statements and unaudited financial statements (which shall have been reviewed by the independent accountants for the Company as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722) referred to in clause 4 of Exhibit H to the Debt Commitment Letter), information regarding the Company and its Subsidiaries reasonably required for Parent to prepare pro forma financial statements as contemplated in clause 6 of Exhibit H to the Debt Commitment Letter (it being understood that the Company need only assist in the preparation thereof, but shall not be required to sign prepare independently any Trust Deed separate pro forma financial statements), financial data, audit reports and other information regarding the Company and its Subsidiaries of the type required by and in compliance with Regulation S-X and Regulation S-K promulgated under the Securities Act of 1933, as amended, and related forms for a registered public offering of debt securities and all information regarding the Company and its Subsidiaries reasonably necessary for the preparation of updated financial projections for Parent after giving effect to the Merger (A) of type and form customarily included in private placements of debt securities under Rule 144A, to consummate the offering(s) of debt securities contemplated by the Debt Commitment Letter (which, for the avoidance of doubt, shall not include financial statements required by Rule 3-10 or Rule 3-16 of Regulation S-X, information regarding executive compensation (including under Rule 402(b) of Regulation S-K) and (B) for the Notesyndication of bridge loan commitments and facilities and secured revolving credit and term loan commitments and facilities contemplated under the Debt Commitment Letter (the financial statements, financial information reasonably required for Parent to prepare pro forma financial statements, and other historical financial information referred to in this clause (ii), the “Required Information”), (iii) assist with the preparation of Financing Agreements, including the use of reasonable best efforts to assist Parent in connection with the preparation of any pledge and security agreements (including schedules and exhibits thereto) required in connection with the Debt Financing and facilitate the granting of a security interest (and perfection thereof) in collateral to secure the Debt Financing, (iv) use reasonable best efforts to cause the Company’s independent auditors to provide, consistent with customary practice, (A) consent to offering memoranda that include or otherwise become obligated thereunder;
incorporate the Company’s consolidated financial information and their reports thereon, in each case, to the extent such consent is required, customary auditors reports and customary comfort letters (cincluding “negative assurance” comfort) No such lienwith respect to financial information relating to the Company and its Subsidiaries, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title (B) reasonable assistance in the Premises preparation of pro forma financial statements by Parent and (C) reasonable assistance and cooperation to Parent, including attending the accounting due diligence sessions of the Company, (v) provide and execute documents as may be reasonably requested by Parent and necessary for the consummation of the transactions contemplated by this Agreement; provided that no obligation of the Company under any such documents shall be effective until the Closing, (vi) reasonably cooperate with the Debt Financing Sources and their respective agents with respect to their reasonably requested due diligence, (vii) furnish Parent and the Debt Financing Sources in a reasonably timely basis with all documentation and other information required by any Governmental Entity with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, (viii) provide customary authorization and management representation letters representing that the information provided by the Company for inclusion in any confidential information memorandum or lender presentation does not include material non-public information about the Company and its Subsidiaries, and designate the information provided by the Company for presentation to lenders as suitable to be made available to lenders who do not wish to receive material non-public information, (ix) arrange for customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all Existing Indebtedness of the Company or any of the Company Subsidiaries contemplated by the Debt Commitment Letter to be paid off, discharged and terminated on the Closing Date (subject to receipt from Parent of the funds necessary to effectuate the pay-off contemplated by such payoff letters, lien terminations and instruments of discharge), and, if requested by Parent, arranging for redemption notices for Existing Indebtedness to be given at Closing or prior to Closing and conditional on the occurrence of the Closing, and (x) satisfy the conditions precedent set forth in the Debt Commitment Letter or any Financing Agreement to the extent the satisfaction of such conditions requires the cooperation of or is within the control of the Company or its Subsidiaries. The Company hereby consents to the use of the logos of the Company and its Subsidiaries in connection with the syndication or marketing of the Debt Financing, provided that such logos are not used in a manner that would reasonably be expected to harm, disparage or adversely affect the Company, its Subsidiaries, their marks or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;reputation.
(f) The Trust Deed shall neither subordinate nor affect Notwithstanding anything to the Landlord’s right to conveycontrary contained in this Agreement, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under nothing in this Lease by Agreement shall require any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended cooperation by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this LeaseCompany, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended Company Subsidiaries or surrendered (except upon termination pursuant to this Lease) without the prior written consent any of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof their respective Representatives to the extent Tenant is obligated under that (A) it would require the terms of this Lease Company to restore pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities that are not reimbursed by Parent as provided in Section 6.09(g) below or give any indemnities prior to Closing, (B) it would require the Improvements following such damage or destruction.
(p) No loan may be Company to take any action that in an amount which exceeds seventy-five percent (75%) the good faith judgment of the fair market value Company unreasonably interferes with the ongoing business or operations of the Improvements at Company and/or any Company Subsidiary, (C) it would require the time the loan is entered into.Comp
Appears in 2 contracts
Sources: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord No later than the second (2nd) Business Day after satisfaction or waiver of the conditions set forth in Article VII (other than delivery of items to be delivered at the Closing and other than satisfaction of those conditions that by their nature are to be satisfied at the Closing, it being understood that the occurrence of the Closing shall remain subject to the delivery of such items and the satisfaction or waiver of such conditions at the Closing), and at all times thereafter until the earlier of the Closing or the termination of this Agreement pursuant to Article VIII, the Buyer and the Transitory Subsidiary will enter into a Lender Recognition have sufficient funds to perform all of their respective obligations under this Agreement with and to consummate the Leasehold Mortgagee;Merger.
(b) The Landlord shall Buyer has delivered to the Company a true and complete copy of a fully executed commitment letter (the “Debt Commitment Letter”), dated as of the date hereof, from ▇▇▇▇▇ Fargo Bank, National Association and ▇▇▇▇▇ Fargo Securities, LLC (such institutions, the “Arrangers”). Pursuant to the Debt Commitment Letter and subject to the terms and conditions contained therein (including the exhibits thereto), the Arrangers have committed to provide $125,000,000 in aggregate principal amount of debt financing for the purposes set forth therein (the “Financing”) to the Buyer at the Effective Time (the “Debt Commitment”). The obligations to fund the full amount of the Financing under the Debt Commitment Letter are not subject to any condition precedents other than those expressly set forth in the Debt Commitment Letter. As of the date hereof, (i) no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default) on the part of the Buyer under the Debt Commitment Letter or, to the knowledge of the Buyer, any other party to the Debt Commitment Letter, and (ii) subject to the Company’s compliance with its obligations under this Agreement, the Buyer does not have any reason to believe that any of the conditions to the Financing will not be required satisfied or that the Financing or any other funds necessary to sign any Trust Deed or pay the NoteAggregate Merger Consideration and to make all other necessary payments by the Buyer in connection with the Merger, including the payment of all fees and expenses reasonably expected to be incurred by the Buyer in connection with the transactions contemplated by this Agreement, will not be available to the Buyer on the Closing Date. As of the date hereof, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation, according to its terms, of each of the Buyer and, to the Buyer’s knowledge, the other parties thereto, subject to the Bankruptcy and Equity Exception. The Debt Commitment Letter has not been amended, restated or otherwise become obligated thereunder;
(c) No such lienmodified or waived on the part of the Buyer prior to the date of this Agreement, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title respective commitments contained in the Premises Debt Commitment Letter have not, to the knowledge of the Buyer, been withdrawn, modified or their reversionary interest rescinded in any respect prior to the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trusteedate of this Agreement, and any lien which it creates, shall expire the financing and other fees that are due and payable on or before the date of expiration this Agreement under the Debt Commitment Letter have been paid in full. Subject to the terms and conditions of this Lease;
(e) The Trust Deed imposes no the Debt Commitment Letter, the net funds contemplated to be received pursuant to the Debt Commitment Letter, together with other financial obligations resources of the Buyer, including cash on hand on the LandlordClosing Date, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect will be sufficient to pay the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease Aggregate Merger Consideration and to make all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended other necessary payments by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements Buyer in connection with any Improvementsthe Merger, including but not limited the payment of all fees and expenses reasonably expected to construction loans, long term loans and refinancing permitted be incurred by the terms of Buyer, in connection the transactions contemplated by this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionAgreement.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Biosphere Medical Inc), Merger Agreement (Merit Medical Systems Inc)
Financing. Tenant may seek (a) Each of Holdings, Parent and Merger Sub shall (i) use reasonable best efforts to obtain a loan take, or cause to finance the Improvements be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Improvements from time Debt Financing on the terms and conditions described in the Debt Commitment Letter (including, to time during the Termextent required in accordance with the terms thereof, the exercise of so-called “flex” provisions in the Fee Letter), including using reasonable best efforts to (A) satisfy on a timely basis all conditions precedent to funding applicable to Parent and Merger Sub in the Debt Commitment Letter and the Financing Agreements to be entered into pursuant thereto and in the Equity Commitment Letter and, upon the satisfaction or waiver of all of the conditions set forth in Sections 7.1 and 7.3, such Commitment Letters and such Financing Agreements, to consummate the Financing no later than the Closing in accordance with Section 2.2, and (B) maintain in full force and effect the Commitment Letters until the funding of the Financing and to negotiate, execute and deliver definitive agreements with respect to such Debt Financing consistent with the terms and conditions contemplated by the Debt Commitment Letter (subject to any applicable “flex” provisions of the Fee Letter) or, if applicable, on terms that are no less favorable to Parent and Merger Sub than the terms contained in the Debt Commitment Letter (taking into account any “flex” provisions applicable thereto) (the “Financing Agreements”), (ii) upon the satisfaction of all conditions precedent to funding in the Debt Commitment Letter and the Financing Agreements, enforce the obligations of the Financing Sources to fund the Debt Financing, and (iii) comply in all material respects with their obligations under the Commitment Letters and the Financing Agreements, to the extent within their control. For such purpose onlyUpon the reasonable request of the Company, Tenant Parent shall have reasonably promptly update the rightCompany in reasonable detail of any material developments concerning the status of the Debt Financing. Parent and Merger Sub shall provide the Company, upon reasonable request, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part copies of Tenant’s interest under this Lease, any Financing Agreements and such other information and documentation regarding the Debt Financing as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided reasonably necessary to Tenant within twenty (20) Business Days allow the Company to monitor the progress of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approvedsuch financing activities. In the event Tenant assigns any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (subject to any applicable “flex” provisions of the Fee Letter), (A) Parent shall notify the Company, and (B) Parent shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain alternative financing from alternative sources (the “Alternative Financing”), upon terms and conditions not less favorable to Parent and Merger Sub than the terms and conditions set forth in the Debt Commitment Letter, in an aggregate amount that, when taken together with the aggregate proceeds contemplated by the Equity Commitment Letter and the available portion of the Debt Financing and cash and cash equivalents available to Parent and Merger Sub, would be sufficient to pay the aggregate Cash Merger Consideration to be paid by Merger Sub at the Closing and any other amounts required to be paid by Parent and Merger Sub at the Closing in connection with the consummation of the transactions contemplated hereby, and to pay all related fees and expenses of Holdings, Parent and Merger Sub required to be paid at the Closing in connection therewith. In the event any Alternative Financing is obtained in accordance with this Section 6.22(a), references in this Agreement to the Debt Financing shall be deemed to refer to such Alternative Financing to the extent the Debt Financing has been replaced thereby, if one or more commitment letters are entered into in connection with such Alternative Financing (such commitment letters, the “Alternative Debt Commitment Letter”), references in this Agreement to the Debt Commitment Letter shall be deemed to refer to the Alternative Debt Commitment Letter to the extent the Debt Commitment Letter has been replaced thereby, and all obligations of Parent, Merger Sub and the Company pursuant to this Section 6.22(a) shall be applicable thereto to the same extent as the obligations of Parent, Merger Sub and the Company with respect to the Debt Financing replaced thereby. None of Holdings, Parent or Merger Sub shall permit or consent to (1) any amendment, supplement or modification to, or any waiver of any provision under, any Commitment Letter if such amendment, supplement, modification or waiver (w) imposes new or additional conditions, or otherwise expands any of the conditions, to the initial funding of the Financing at Closing from those set forth therein on the date hereof, (x) would reasonably be expected to materially and adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the applicable Commitment Letter (provided, that Parent and Merger Sub may replace or amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof), (y) would reasonably be expected to materially impair, materially delay or prevent the availability of all or a portion of the Financing or the consummation of the transactions contemplated by this Agreement, or (z) would reduce the aggregate cash amount of the Financing to an amount that, when taken together with other funds available to Parent, Merger Sub and the Surviving Corporation, is not sufficient to pay the aggregate Cash Merger Consideration to be paid by Merger Sub at the Closing and any other amounts required to be paid by Holdings, Parent and Merger Sub at the Closing in connection with the consummation of the transactions contemplated hereby and to pay all related fees and expenses of Holdings, Parent and Merger Sub required to be paid at the Closing in connection therewith, or (2) early termination of the Debt Commitment Letter (other than in connection with Alternative Financing) or the Equity Commitment Letter. Parent shall furnish to the Company a copy of any amendment, modification or waiver of any Commitment Letter following execution thereof, in each case, to the extent entered into prior to the Closing; provided, that any amendment to the Fee Letter may be redacted to the extent permitted under Section 5.11. Parent shall promptly notify the Company in writing (I) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to any Commitment Letter or Financing Agreement of which Parent obtains knowledge, (II) of the receipt by any of Holdings, Parent, Merger Sub or any of their respective Affiliates or Representatives of any written notice or other written communication from any Financing Source with respect to any actual, threatened or alleged material breach, default, termination or repudiation by any party to any Commitment Letter or any Financing Agreement or any provision of the Financing contemplated pursuant to the Commitment Letters or Financing Agreement (including any proposal by any Financing Source to withdraw, terminate or make a material change in the terms of (including the amount of Financing contemplated by) the Commitment Letters), (III) if for any reason any of Holdings, Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of Tenant’s Interest the Financing on the terms, in the manner or from the sources contemplated by the Commitment Letters or the Financing Agreements and (IV) of the termination or expiration prior to secure a loan permitted under Closing of any Commitment Letter or Financing Agreement. As soon as reasonably practicable, Holdings, Parent and Merger Sub shall provide any material information reasonably requested by the Company relating to any of the circumstances referred to in this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;6.22(a).
(b) Prior to the Closing, the Company agrees to use reasonable best efforts to provide, and shall use reasonable best efforts to cause its Subsidiaries and their respective officers, directors, employees, accountants, consultants, investment bankers, legal counsel, agents, financial advisors and other advisors and representatives (collectively the “Representatives”) to provide, all cooperation in connection with the arrangement of the Debt Financing contemplated by the Debt Commitment Letter as may be reasonably requested by Parent, including: (i) furnishing Parent and the Commitment Parties, as promptly as practicable, with the Required Bank Information and all other available pertinent information and disclosures relating to the Company and its Subsidiaries (including businesses, operations, financial projections and prospects) as may be reasonably requested by Parent in order to consummate the Debt Financing; (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and representatives (with appropriate seniority and expertise) of the Company and its Subsidiaries), presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders and investors and ratings agencies in connection with the Debt Financing; (iii) assisting Parent and the Commitment Parties in the preparation of any offering documents, private placement memoranda, lender presentations, bank information memoranda, materials for rating agency presentations, projections and similar documents reasonably required in connection with the Debt Financing (including the execution and delivery of customary representation or authorization letters (the “Authorization Documents”)); (iv) facilitating the execution and delivery at the Closing of definitive documents related to the Debt Financing on the terms contemplated by the Debt Commitment Letter and which will become effective at or after the Effective Time and, to the extent reasonably requested by Parent, making available appropriate members of the Company’s senior management to assist in the negotiation of any such agreements and other documents and instruments; (v) facilitating the providing of guarantees and the granting of security interests (and perfection thereof) in collateral and the obtaining of environmental assessments, third-party consents, surveys and title insurance at the sole expense of, and as reasonably requested by, Parent; provided, that no perfected security interest, pledge or guarantee shall be effective until the Effective Time; (vi) requesting from the Company’s existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Parent in connection with the Debt Financing and collateral arrangements, including customary payoff letters, lien terminations, instruments of termination or discharge to be delivered at the Closing providing for the payoff, discharge and termination on the Closing Date of all Indebtedness contemplated by the Debt Commitment Letter to be paid off, discharged and terminated on the Closing Date; (vii) providing to Parent and the Commitment Parties all documentation and other information required by regulatory authorities with respect to the Company and its Subsidiaries under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in any case as is requested in writing by Parent at least ten (10) Business Days prior to the Closing Date; and (viii) obtaining legal opinions, landlord and mortgagee waivers, bailee letters and similar documents customary for financings similar to the Debt Financing. The Landlord Company further agrees to supplement reasonably promptly the information provided pursuant to this Section 6.22(b) to the extent that any such information, to the knowledge of the Company, contains any material misstatement of fact or omits to state any material fact necessary to make such information not misleading in any material respect. Notwithstanding the foregoing, except to the extent of the execution and delivery of the Authorization Documents: (A) such requested cooperation shall not unreasonably interfere with the business or the ongoing operations of the Company and/or the Company’s Subsidiaries; (B) nothing in this Section 6.22(b) shall require cooperation to the extent that it would (1) cause any condition to the Closing set forth in Sections 7.1 or 7.3 to not be satisfied or otherwise cause any breach of this Agreement or (2) reasonably be expected to conflict with or violate the Company’s organizational documents or any Legal Requirement, or result in the contravention of, or result in a violation or breach of, or default under, any Material Contract; (C) prior to the Closing Date, neither the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability or obligation in connection with the financings contemplated by the Debt Commitment Letter except in the case of expenses that are advanced or reimbursed as provided in Section 6.22(c); (D) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into, perform or authorize any agreement with respect to the financing contemplated by the Debt Commitment Letter that is not contingent upon the Closing or that would be effective prior to the Closing Date; and (E) nothing shall obligate the Company or any of its Subsidiaries to provide, or cause to be provided, any legal opinion by its counsel, or to provide any information or take any action to the extent it would result in a violation of applicable Legal Requirements. Notwithstanding anything in this Agreement to the contrary, without limiting the Company’s cooperation obligations under this Section 6.22(b) with respect to any Alternative Financing Commitment Letter or Alternative Financing, if (i) Parent seeks to obtain any Alternative Financing Commitment Letter or Alternative Financing, (ii) the cooperation required to be provided pursuant to this Section 6.22(b) in connection with such Alternative Financing Commitment Letter or Alternative Financing is more onerous to the Company than what is required to be provided pursuant to this Section 6.22(b) with respect to the Debt Commitment Letter in effect on the date hereof and without giving effect to any Debt Financing Commitment Letter or the Debt Financing contemplated thereunder (to the extent more onerous, the “Incremental Debt Financing Cooperation”), and (iii) the Company fails to provide any portion of such Incremental Debt Financing Cooperation, then such failure to provide such Incremental Debt Financing Cooperation (A) shall not be required deemed to sign be a breach of this Section 6.22(b) for purposes of Article VIII of this Agreement and (B) shall not be the basis for a determination of non-compliance with clause (a) of the definition of “Marketing Period” (it being understood that this sentence shall in no way apply to the Company’s cooperation obligations under this Section 6.22(b) with respect to any Trust Deed Alternative Financing Commitment Letter or Alternative Financing that does not constitute Incremental Debt Financing Cooperation). The Company hereby consents to the Noteuse of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or otherwise become obligated thereunder;disparage the Company or its Subsidiaries.
(c) No None of the Company, the Company’s Subsidiaries and their respective officers, directors, employees, accountants, legal counsel and other Representatives shall be required to take any action that would subject such lienPerson to actual or potential liability, charge to bear any cost or encumbrance shall constitute a lien expense or encumbrance upon the Landlord’s fee title in the Premises to pay any commitment or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s other similar fee or leasehold title (respectively) make any other payment or reversionary interest in the Improvements incur any other liability or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee provide or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire agree to provide any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements indemnity in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.D
Appears in 2 contracts
Sources: Merger Agreement (Symmetry Surgical Inc.), Agreement and Plan of Merger (Symmetry Medical Inc.)
Financing. Tenant may seek If, at any time after the date of this Agreement, the PropCo Buyer does not have unrestricted cash, cash equivalents or marketable securities together with available borrowings under its existing revolving credit agreements or other lines of credit sufficient to obtain a loan pay (a) the Real Estate Purchase Price and all other necessary fees, expenses and other amounts payable by the PropCo Buyer in connection with the consummation of the Transactions and (b) the amount required to finance pay the Improvements purchase price and to refinance any related fees and expenses in connection with any executed acquisition transactions pending as of the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part date of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage Agreement (collectively, the “Trust DeedPropCo Buyer Required Amount”). Landlord’s written approval , Seller may request in writing that PropCo Buyer obtain an executed commitment letter from one or denial more financing sources pursuant to which they have committed, subject solely to the terms and conditions therein (which terms and conditions shall be reasonably acceptable to the Seller), to provide, or cause to be provided, the PropCo Buyer with debt financing in an amount sufficient, when taken together with unrestricted cash, cash equivalents or marketable securities together with available borrowings under its existing revolving credit agreement, to fund the PropCo Buyer Required Amount (a “Debt Commitment Letter”); provided that the PropCo Buyer shall not be obligated to Tenant obtain a Debt Commitment Letter in an amount greater than the Real Estate Purchase Price if the sole use of proceeds for such Debt Commitment Letter is the payment of the Real Estate Purchase Price. Upon receiving such written request, PropCo Buyer shall obtain a Debt Commitment Letter within twenty fifteen (2015) Business Days of TenantPropCo Buyer’s receipt of such written request, which . The PropCo Buyer shall contain promptly after receipt of the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Debt Commitment Letter provide to the request within twenty (20) Business DaysSeller true, correct and complete copies of the Debt Commitment Letter. Unless otherwise agreed by the Seller expressly in writing, any Debt Commitment Letter shall remain in place on the committed terms until the Closing Date. For the avoidance of doubt, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant Seller to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements cooperate in connection with any ImprovementsFinancing as set forth in Section 6.19 shall apply to any Debt Commitment Letter requested by Seller pursuant to this Section 6.24. Notwithstanding the foregoing, including but not limited in the event that PropCo Buyer receives any written request from Seller pursuant to construction loansthis Section 6.24 and PropCo Buyer is subsequently able to reasonably demonstrate to Seller that it has sufficient cash, long term loans and refinancing permitted by cash equivalents or marketable securities together with available borrowings under its existing revolving credit agreements or other lines of credit in amount equal to or greater than the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord PropCo Buyer Required Amount, then any such Seller request shall be notified by the Leasehold Mortgagee within thirty (30) days automatically be deemed to have been fulfilled and all of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default PropCo Buyer’s obligations pursuant to the California Civil Code this Section 2924;
(n) Tenant 6.24 shall give Landlord written notice of any Trust Deed prior automatically be deemed to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionsatisfied.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Transaction Agreement (Penn National Gaming Inc), Transaction Agreement (Vici Properties Inc.)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement Purchaser shall keep Yahoo! reasonably informed with respect to Purchaser’s plan for financing the Leasehold Mortgagee;Initial Repurchase (including nature, amount and anticipated timing) and with respect to the status of such financing. No later than five Business Days prior to the Initial Repurchase Closing Date, Purchaser shall deliver to Yahoo! the Financing Certificate and provide Yahoo! with an opportunity to review (in person at the offices of Purchaser’s U.S. counsel), but not to make copies of or retain, the equity financing documents relevant to calculating the Repurchase Price. Purchaser may withdraw and may replace any previously-delivered Financing Certificate; provided, however, that Purchaser shall keep Yahoo! informed of such withdrawal or replacement as soon as reasonably practicable after such occurrence and in any event prior to the Initial Repurchase Closing Date.
(b) The Landlord shall not be required to sign any Trust Deed or In the Noteevent that, (i) during the Replacement Equity Financing Period, Purchaser sells, or otherwise become obligated thereunder;enters into a binding written agreement to sell, Equity Interests for proceeds of more than US$500,000,000 (such financing during such time period, “Subsequent Equity Financing”) and (ii) at any time during the Replacement Equity Use Period Purchaser uses any proceeds of such Subsequent Equity Financing to repurchase Equity Interests or to (x) redeem or repay indebtedness of any of Purchaser’s Subsidiaries incurred after the date of this Agreement or (y) redeem or repay indebtedness of Purchaser (any Subsequent Equity Financing meeting the conditions set forth in both of clauses (i) and (ii), “Replacement Equity Financing”), Purchaser shall, within five Business Days of such repurchase, redemption or repayment, pay to Yahoo! and/or YHK, as applicable, an amount in cash equal to each Seller’s pro rata share of the Make Whole Amount.
(c) No such lienShares or Equity Interests sold by Purchaser as part of the financing of the Initial Repurchase (including in any Replacement Equity Financing) shall be sold to JT, charge JM, SB or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or any of their reversionary interest in the Improvements;respective Affiliates.
(d) Any interest in Following the Premises which Initial Repurchase Closing, Purchaser shall cause JM on behalf of himself and the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before other AGH SAFE 75 Reporting Persons who are required to do so by Law to submit applications to amend the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on AGH SAFE Circular 75 Registration within 30 days upon the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution occurrence of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionAmendment Event.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Share Repurchase and Preference Share Sale Agreement (Alibaba Group Holding LTD), Share Repurchase and Preference Share Sale Agreement (Yahoo Inc)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with Each of the Leasehold Mortgagee;
(b) The Landlord Buyer Parties shall not be required use its reasonable best efforts to sign any Trust Deed or the Notetake, or otherwise become obligated thereunder;
(c) No such liencause to be taken, charge all actions and do, or encumbrance shall constitute a lien cause to be done, all things necessary, proper or encumbrance upon advisable to arrange, obtain and consummate the Landlord’s fee title Financing at or prior to the Closing on the terms and conditions described in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trusteeCommitment Letters, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right including using reasonable best efforts to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by maintain in full force and effect the Commitment Letters, (ii) negotiate, enter into and deliver the definitive agreements with respect to the Debt Financing to be entered into at or prior to the Closing (the “Definitive Financing Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letters (taking into account any Leasehold Mortgagee as though “flex” provisions included in the same had been performed by Tenant;
Fee Letter), (jiii) The time available satisfy at or prior to a Leasehold Mortgagee Closing all conditions and covenants to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession the funding of the leasehold interest shall be deemed extended by Financing in the number Commitment Letters and the Definitive Financing Agreements applicable to the Buyer Parties and their respective Affiliates, (iv) assuming that all conditions set forth in the Commitment Letters have been satisfied, borrow on or prior to the Closing Date an amount necessary to consummate the transactions contemplated hereby on the Closing Date or (v) enforce all of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their its rights under this Leasethe Commitment Letters and Definitive Financing Agreements including seeking specific performance of the parties thereunder. The Buyer Parties shall not, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgageethe Company, permit any amendment, supplement or modification to, or any waiver of any provision or remedy under, restate, substitute or replace, the Commitment Letters if such amendment, supplement, modification, waiver, restatement, substitution or replacement (1) would add new (or expand, amend or modify any existing) conditions to the receipt of the Financing, (2) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Financing below the Required Amount, (3) would otherwise reasonably be expected to prevent, impede, impair or delay the consummation of the transactions contemplated hereby or (4) would adversely impact the ability of any of the Buyer Parties to enforce their rights against the other parties to the Commitment Letters or the Definitive Financing Agreements; provided, that the Buyer Parties may amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letters as of the date of this Agreement. As promptly as practicable following execution thereof, the Buyer Parties shall furnish to the Company a correct and executed copy of any amendment, restatement, replacement, supplement, modification, waiver or consent of or relating to the Debt Commitment Letter and the Fee Letters and any other fee letters entered into in connection with the Debt Financing. Upon any such permitted amendment, supplement, modification, waiver or replacement of the Debt Commitment Letters in accordance with this Section 6.4(b), the terms “Debt Commitment Letters,” “Fee Letters” and “Debt Financing” shall refer to the Debt Commitment Letters as so amended, supplemented, modified, waived or replaced and the financing contemplated thereby.
(b) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, the Buyer Parties will (i) use their respective reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative debt financing (as applicable, in an amount sufficient to consummate the transactions contemplated hereby) from the same or other sources and on terms and conditions (taking into account any “flex” provisions included in the Fee Letter) in an amount sufficient for satisfaction of all of the Buyer Parties’ payment obligations under this Agreement due on or prior to the Closing or are not materially less favorable to the Buyer Parties (as determined by Parent in its sole discretion) than such unavailable Debt Financing (the “Alternative Financing”), with it being understood and agreed that if the Buyer Parties proceed with any Alternative Financing, the Buyer Parties shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing, and (ii) promptly notify the Company of such unavailability. For the purposes of this Agreement, (i) the term “Debt Financing” shall be deemed to include the Debt Financing and any such Alternative Financing, (ii) the term “Debt Commitment Letters” and the “Fee Letter” shall include the Debt Commitment Letter and any Fee Letter, as applicable, shall be deemed to include any commitment letter (or similar agreement) and any fee letter, respectively, with respect to any Alternative Financing arranged in compliance herewith (and any Debt Commitment Letters or Fee Letters remaining in effect at the time in question) and (iii) the “Definitive Financing Agreements” shall include the definitive documentation relating to the debt financing contemplated by the Debt Commitment Letter and any such Alternative Financing. Upon the Company’s request, the Buyer Parties shall keep the Company informed, in reasonable detail, of the status of their efforts to arrange the Debt Financing. Without limiting the generality of the foregoing, the Buyer Parties shall provide the Company with prompt written notice of (A) any breach or default (or any event that, with or without notice, passage of time or both, would give rise to any breach or default) by any party to any Commitment Letter or the Definitive Financing Agreements of which the Buyer Parties become aware that would adversely affect the ability or likelihood of the Buyer Parties to timely consummate the transactions contemplated hereby at the Closing, (B) the termination of the Debt Commitment Letter, (C) the occurrence of an event or development that would adversely impact the ability of the Buyer Parties to obtain all or any portion of the Debt Financing or (D) any condition precedent to the Debt Financing that any of the Buyer Parties has any reason to believe will not be satisfied at or prior to the Closing Date. Notwithstanding anything to the contrary herein, no Buyer Party shall have an obligation to disclose any information pursuant to this Agreement that is subject to attorney-client or similar legal privilege.
(c) From the date of this Agreement until the earlier of the Closing Date and the valid termination of this Agreement in accordance with Article VIII, the Company shall use its reasonable best efforts (or, in the case of clause (iv) below, shall), and shall cause its Subsidiaries to, and the Company shall cause its and its Subsidiaries’ Representatives to, at Parent’s sole expense, provide such reasonable cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the Debt Financing (it being understood that, solely for purposes of this Section 6.5(c), the terms “Debt Financing” and “Financing” shall be deemed to include any high yield or other financing incurred in lieu of or in addition to any facility contemplated by the Debt Commitment Letter), including by:
(i) participating (and causing senior management and Representatives, with appropriate seniority and expertise, of the Company Group to participate) in a reasonable number of meetings and presentations with actual or prospective lenders, road shows and due diligence sessions, drafting sessions and sessions with rating agencies, and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt Financing (which, at the Company’s option, may be attended via teleconference or virtual meeting platforms) upon reasonable advance notice, during normal business hours and at reasonable times and locations to be mutually agreed;
(mii) The Trust Deed providing reasonable assistance to Parent and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents, in each case, solely with respect to information relating to the Company Group, and as required in connection with the Debt Financing and customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Company Group to the extent required by the Debt Commitment Letter or Securities and Exchange Commission rules and regulations or necessary or reasonably requested by Parent to be included in any marketing materials or offering documents or of the type required by the Debt Commitment Letter, it being understood that the Buyer Parties shall provide thatbe responsible for (i) the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto; (ii) the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or (iii) any financial information related to Parent or any of its Subsidiaries or any adjustments whether or not directly related to the acquisition of the Company Group;
(iii) to the extent required by the Definitive Financing Agreements, reasonably assisting in connection with facilitating the pledging of collateral, effective no earlier than, and conditioned upon the occurrence of, the Closing;
(iv) furnishing the Buyer Parties and the Debt Financing Sources, as promptly as practicable, with the Required Information that is Compliant;
(v) cooperating with the Buyer Parties to obtain customary and reasonable corporate and facilities ratings, and, solely to the extent required by the Definitive Financing Agreements, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, non-imputation affidavits, surveys and title insurance as reasonably requested by the Debt Financing Sources;
(vi) providing customary documents reasonably requested by Parent relating to the repayment of the Repaid Indebtedness and the release of related guarantees and Liens, including (A) delivering notices of prepayment (or obtaining waivers thereof in the applicable Payoff Letters) within the time periods required by the relevant agreements governing Indebtedness and obtaining the Payoff Letters, Lien terminations and instruments of discharge to be delivered at the Closing, (B) giving any other necessary notices to allow for the payoff, discharge and termination in full at the Closing of all Repaid Indebtedness and (C) any other cooperation reasonably requested by Parent in connection with the repayment or other retirement of any Repaid Indebtedness and the release and termination of any and all related Liens on or prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty Closing Date;
(60vii) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deedextent required by the Debt Commitment Letter, including accrued interestproviding customary authorization letters with respect to the bank information memoranda (provided that all such authorization letters and materials related thereto (A) shall include or otherwise expressly incorporate language that exculpates the Company Group, reasonable attorneys’ fee for the holder or beneficiary, its Affiliates and applicable statutory costs its and allowances if their Representatives from any foreclosure proceedings shall have commenced. All loan agreements liability in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted the unauthorized use or misuse by the terms recipients thereof of this Lease all such memoranda and other materials and documents and information set forth therein; and (B) shall contain have been previously identified to, and provided to the written agreement of Company and the Leasehold Mortgagee that Landlord Company and its Representatives shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be have been given the reasonable opportunity to correct the default review and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924comment thereon);
(nviii) Tenant shall give Landlord written notice reasonably assisting the Buyer Parties with the preparation, and, subject to the occurrence of Closing, the execution and delivery of any Trust Deed Definitive Financing Agreements by furnishing information relating to the Company Group and their respective businesses to be included in the schedules thereto and customary officer’s certificates (including a customary solvency certificate from the chief financial officer of the Company in the form attached to the Debt Commitment Letter, but solely to the extent such officer remains in such capacity with the Surviving Corporation immediately after the Closing) on terms satisfactory to Parent as may be reasonably required by Parent (provided that no obligation of the Company under any such document or agreement shall be effective until the Closing);
(ix) ensuring that the Debt Financing benefits from existing material lending relationships of the Company Group to the extent practicable and reasonably requested by Parent;
(x) taking all reasonable and customary corporate, limited liability company or similar actions necessary to permit the consummation of the Debt Financing (provided that no obligation of the Company to take such action shall be effective until the Closing);
(xi) promptly (but in no event later than four (4) Business Days prior to the execution and/or recording of same Closing Date) all documentation and other information relating to the Company and its Subsidiaries required by Tenantbank regulatory authorities under applicable “know-your-customer”, anti-money laundering rules and shall accompany such notice with a true copy of such Trust Deed and regulations, including the Note secured therebyPATRIOT Act, reasonably requested by Parent in writing, at least ten (10) days prior to the Closing Date; and
(oxii) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof (A) executing and delivering customary management representation letters to their independent auditors and (B) causing their independent auditors and any other auditor to the extent Tenant is obligated under that financial statements audited or reviewed by such auditors are or would be included in any offering memorandum relating to any such Debt Financing to (x) provide drafts and executed versions of customary auditor comfort letters (including “negative assurance” comfort and change period comfort) with respect to historical financial information relating to the terms Company Group as reasonably requested by Buyer Parties or as necessary or customary for financings similar to the Debt Financing (including any offering or private placement of this Lease debt securities pursuant to restore the Improvements following such damage or destructionRule 144A) and (y) attend a reasonable number of accounting due diligence sessions and drafting sessions at reasonable times and places.
(pd) No loan may All non-public or otherwise confidential information regarding the Company, its Subsidiaries and their Affiliates obtained by the Buyer Parties or their Representatives pursuant to this Section 6.5 shall be kept confidential in an amount which exceeds seventy-five percent (75%) accordance with the Confidentiality Agreements, including any joinder or other agreement entered into in connection therewith; provided, that notwithstanding the Confidentiality Agreements or any other provision of this Agreement, the Buyer Parties and their respective Affiliates and Representatives shall be permitted to disclose any information provided by, or on behalf of, the Company or its Subsidiaries to any actual or potential debt financing sources, subject to customary confidentiality undertakings by such actual and potential debt financing sources. The Company hereby consents to the use of the fair market value logos of the Improvements at Company and its Subsidiaries in connection with the time Debt Financing; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the loan is entered Company or its Subsidiaries or their reputation or goodwill.
(e) Notwithstanding anything herein to the contrary, (i) none of the Company, its Subsidiaries or their Affiliates or any persons who are directors or managers of the Company, any of its Subsidiaries or any of their Affiliates shall be required to pass resolutions or consents to approve or authorize the execution of the Debt Financing or to execute, deliver or enter into., or perform any agreement, certificate, arrangement, document or instrument, including any Definitive Financing Agreements, with respect to the Debt Financing that will be effective prior to the Closing (other than any customary authorization letters and management representation letters), (ii) no obligation of the Company, its Subsidiaries or their Affiliates or any of their respective Representatives undertaken pursuant to the foregoing shall be effective until Closing, and (iii
Appears in 2 contracts
Sources: Merger Agreement (R1 RCM Inc. /DE), Merger Agreement (R1 RCM Inc. /DE)
Financing. Tenant may seek (a) Prior to the Closing, Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or desirable to arrange and consummate the Financing on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated by the Commitment Letters and the Fee Letter (including any “market flex” provisions that are contained in the Fee Letter), including using reasonable best efforts to (i) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Parent or Merger Sub set forth in the Commitment Letters and the Fee Letter (including definitive agreements related thereto) that are within its control, including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing, (ii) maintain in effect the Commitment Letters (subject to Parent’s right to amend, modify, supplement, restate, assign, substitute or replace the Commitment Letters in accordance herewith), comply with its obligations pursuant to the Commitment Letters, diligently enforce their rights under the Commitment Letters and, with respect to the Debt Commitment Letter, negotiate and enter into definitive agreements with respect thereto on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated in the Debt Commitment Letter and the Fee Letter (including any “market flex” provisions contained in the Fee Letter), (iii) consummate the Financing at or prior to the Closing, (iv) ensure the participation by a Representative of Parent and Merger Sub in, and assistance by Representatives of Parent and Merger Sub with, the preparation of rating agency presentations, meetings with ratings agencies and meetings with prospective lenders and (v) comply with Merger Sub’s obligations under the Debt Commitment Letter and the Fee Letter. If funds in the amounts and on the terms set forth in a Debt Commitment Letter become unavailable to Parent or Merger Sub on the terms and conditions (including any “market flex” provisions contained in the Fee Letter) contemplated in the Debt Commitment Letter and the Fee Letter (other than as a result of the Company’s breach of this Agreement, or if the Company’s failure to perform would be the sole cause of the conditions set forth in Section 7.01 or Section 7.02 not to be satisfied), Parent and Merger Sub shall promptly notify the Company of such fact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, when added with the Equity Financing, sufficient to consummate the Transactions, including, for the avoidance of doubt, payment of the Required Amount and that would not (i) include any conditions precedent to the Debt Financing that are not contained in the Debt Commitment Letter and the Fee Letter that would reasonably be expected to (1) make the funding of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (2) materially delay or prevent the Closing and (ii) otherwise reasonably be expected to materially delay or prevent the Closing; provided that Parent and Merger Sub shall not be required to accept any Alternative Financing having terms and conditions (including “market flex” provisions) less favorable to Parent and Merger Sub than those in the Debt Commitment Letter and the Fee Letter; provided, further, that if Parent and Merger Sub proceed with such Alternative Financing, Parent and Merger Sub shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Section 6.09(a) with respect to the Financing, and all references in this Agreement to the “Debt Financing”, “Financing”, “Debt Commitment Letter”, “Fee Letter” and “Commitment Letters” (and other like terms in this Agreement) shall be deemed to also include such Alternative Financing, as applicable. In the event all conditions applicable to the Commitment Letters have been satisfied or waived, Parent shall cause the Fund to fund the Equity Financing and shall use its reasonable best efforts to cause the Persons providing the Debt Financing to fund such Debt Financing required to consummate the Transactions on the Closing Date.
(b) Upon written request of the Company, Parent shall keep the Company apprised (as promptly as possible, and in any event within forty-eight (48) hours) of material developments relating to the Financing. Parent shall give the Company prompt written notice of any material adverse change with respect to the Financing. Without limiting the generality of the foregoing, Parent shall give the Company prompt written notice and, in any event, within forty-eight (48) hours, (i) of any breach, default, termination or repudiation by any party to any of the Commitment Letters or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware, (ii) of the receipt of (A) any written notice or (B) other written communication, in each case from any Lender Related Party with respect to any (1) actual breach, default, termination or repudiation by any party to any of the Commitment Letters or definitive agreements related to the Financing of any provisions of the Commitment Letters or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware or (2) material dispute or disagreement between or among any parties to the Commitment Letters or definitive agreements of which Parent becomes aware related to the Financing with respect to the obligation to fund any of the Financing or the amount of the Financing to be funded at the Closing and (iii) if at any time for any reason Parent believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letters or definitive agreements related to the Financing such that it would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount. As soon as reasonably practicable, but in any event within forty-eight (48) hours of the date that the Company delivers to Parent a loan written request, Parent shall provide any information reasonably requested by the Company relating to finance any circumstance referred to in clause (i), (ii) or (iii) of the Improvements and immediately preceding sentence. Parent shall not replace, amend, supplement, modify or waive the Debt Commitment Letter or any provision of any fee letter relating to refinance the Improvements from time to time during Debt Commitment Letter (it being understood that the Term. For such purpose onlyexistence or exercise of “market flex” provisions contained in the Fee Letter shall not constitute a replacement, Tenant shall have amendment, supplement, modification or waiver of the rightDebt Commitment Letter), with Landlordwithout the Company’s prior written approvalconsent (such consent not to be unreasonably withheld, which or conditioned or delayed) if such replacement, amendment, supplement, modification or waiver (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees) such that Parent would not have amounts sufficient to consummate the Merger and the other Transactions, including payment of the Required Amount, (y) amends the conditions precedent to the Debt Financing in a manner that adds additional conditions precedent to the Debt Financing, or otherwise expands, amends or modifies any of the conditions precedent to the availability of the Debt Financing, in each case, in a manner that would reasonably be expected to (1) make the funding of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (2) materially delay or prevent the Closing or (z) adversely impacts the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter (as it may be replaced, amended, supplemented, modified or waived in accordance with this Section 6.09); provided that Parent and Merger Sub may replace, amend, supplement or modify the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (or titles with respect to such entities) that have not executed the Debt Commitment Letter as of the date of this Agreement (it being understood that the aggregate commitments of the lenders party to the Debt Commitment Letter prior to such amendment, supplement or modification may be reduced in the amount of such additional party’s commitments) (provided that, except as provided for in the Debt Commitment Letter with respect to Additional Committing Lenders (as defined in the Debt Commitment Letter), no such addition shall relieve the original Committed Lenders of their obligations under the Debt Commitment Letter prior to the funding of the Debt Financing). Parent shall promptly provide to the Company true and complete copies of any commitment letter and fee letter (which, in the case of a fee letter, may redact Permissible Redacted Terms) associated with a replacement Debt Financing or Alternative Financing as well as any amendment, supplement, modification or waiver of any Debt Commitment Letter or any related fee letter (which, in the case of a fee letter, may redact Permissible Redacted Terms), that is permitted hereunder.
(c) Parent shall not replace, amend, supplement, modify or waive or agree to replace, amend, supplement, modify or waive (in any case whether by action or inaction), any term of the Equity Commitment Letter without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). Parent shall promptly (and in any event within one (1) Business Day) notify the Company of (i) the expiration or termination (or attempted or purported termination, whether or not valid) of the Equity Commitment Letter or (ii) any refusal by the Fund to provide the full financing contemplated by the Equity Commitment Letter.
(d) Prior to the Closing, the Company shall use its reasonable best efforts to provide, and to cause the Company Subsidiaries and its and their respective Representatives to use their reasonable best efforts to provide, to assign Parent and Merger Sub, in each case at Parent’s sole cost and expense (subject to the expense reimbursement provision in the last sentence of this Section 6.09(d)), such cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or part any portion of Tenantthe Debt Financing, including by:
(i) assisting in preparation for and participating (including causing the Company’s interest under this Leaseand Company Subsidiaries’ management teams, with appropriate seniority and expertise to participate) in a reasonable number of investor and lender meetings (including a reasonable and limited number of customary one on one meetings and calls that are requested in advance with or by the parties acting as security lead arrangers, bookrunners or agents for, and prospective lenders and purchasers of, the Debt Financing), lender due diligence presentations, drafting sessions, road shows and presentations, including sessions with rating agencies in connection with the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing at reasonable times and locations mutually agreed, and assisting Parent in obtaining ratings in connection with the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing;
(ii) assisting Parent, Merger Sub and the Lender Related Parties with the preparation by Parent, Merger Sub and the Lender Related Parties of materials for rating agency presentations, lender presentations, high-yield road show presentations and offering memoranda, bridge teasers, private placement memoranda, bank information memoranda and similar marketing documents required in connection with the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of the Debt Financing; provided that (i) the Company’s obligation to provide information for such materials shall be limited to information about the Company and the Company Subsidiaries and (ii) Parent and Merger Sub shall be solely responsible for, the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage pro forma financial information (collectively, the “Trust DeedDebt Marketing Materials”). Landlord’s written approval or denial shall be provided to Tenant within twenty , including (20A) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s furnishing business and financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond projections with respect to the request within twenty Company on a consolidated basis reasonably requested by Parent or Merger Sub and (20B) Business Daysfurnishing records, data or other information with respect to the request shall be deemed approved. In Company and the event Tenant assigns Company Subsidiaries necessary to support any statistical information or claims relating to the Company and the Company Subsidiaries appearing in the Debt Marketing Materials;
(iii) executing and delivering as of (but not prior to) the Closing any pledge and security documents, other definitive financing documents for the Debt Financing or any customary high-yield non-convertible bonds being issued in lieu of all or any portion of Tenant’s Interest the Debt Financing, or other certificates or documents and back up therefor and for legal opinions as may be reasonably requested by Parent (including (x) solely to secure the extent such Person has been appointed as chief financial officer or treasurer (or other comparable officer) of the Borrower (as defined in the Debt Commitment Letter) on the Closing Date, executing and delivering a loan permitted under this Section 14.2certificate of the chief financial officer or treasurer (or other comparable officer) of the Borrower substantially in the form attached as Annex I to Exhibit E to the Debt Commitment Letter certifying the solvency, then after giving effect to the following shall apply:
Transactions, of the Borrower and its subsidiaries on a consolidated basis and (ay) Landlord will enter into a Lender Recognition Agreement any certificate or other document reasonably requested by Parent as backup for legal opinions to be provided in connection with the Leasehold Mortgagee;
transactions contemplated by Section 6.12)) and otherwise reasonably facilitating the granting of guarantees and the pledging of collateral; provided that (bA) The Landlord none of the documents or certificates shall not be required to sign any Trust Deed or executed and/or delivered except in connection with the NoteClosing, (B) the effectiveness thereof shall be conditioned upon, or otherwise become obligated thereunder;
operative after, the occurrence of the Closing (c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date case of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession each of the leasehold interest shall be deemed extended foregoing clauses (A) and (B), other than the execution of (1) the authorization letters set forth in Section 6.09(d)(vi) below, (2) the representation letters required by the number Company’s auditors in connection with the delivery of days of delay occasioned by judicial restriction “comfort letters” set forth in Section 6.09(d)(ix) below, (3) the prepayment, termination or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
redemption notices set forth in Section 6.09(d)(v) below, (k4) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements customary solicitation agent agreement in connection with any Improvementsconsent solicitation or change of control tender offer in respect of the 2021 Notes, including but not limited the 2023 Notes or the 2025 Notes set forth in Section 6.12, (5) a customary dealer manager agreement in connection with any tender offer, exchange offer or change of control tender offer in respect of the 2021 Notes, the 2023 Notes or the 2025 Notes set forth in Section 6.12, (6) any certificate or other document reasonably requested by Parent as backup for legal opinions to construction loansbe provided in connection with the transactions contemplated by Section 6.12, long term loans (7) customary ancillary agreements and refinancing permitted closing deliverables for any consent solicitation, tender offer, exchange offer, change of control tender offer, optional redemption, satisfaction and discharge or defeasance in respect of the 2021 Notes, the 2023 Notes or the 2025 Notes set forth in Section 6.12, (8) any approvals or authorizations by the terms board of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty directors (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%equivalent bodies) of the fair market value Company or any Company Subsidiary in connection with any consent solicitation, tender offer, exchange offer, change of the Improvements at the time the loan is entered into.control tender offer, optional redemption, s
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Anixter International Inc), Agreement and Plan of Merger (Anixter International Inc)
Financing. Tenant may seek (a) Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all actions and use their reasonable best efforts to do, or cause to be done, all things necessary or advisable to arrange the Debt Financing and to consummate the Debt Financing at the Effective Time, including using reasonable best efforts to (i) maintain in effect the Debt Commitment Letter; (ii) satisfy on a timely basis all of the conditions precedent set forth in the Debt Commitment Letter; (iii) negotiate, execute and deliver definitive documentation for the Debt Financing that reflects the terms contained in the Debt Commitment Letter (subject to any market flex provisions); and (iv) in the event that the conditions set forth in Sections 7.1 and 7.2 and the conditions precedent set forth in the Debt Commitment Letter have been satisfied or, upon funding would be satisfied, cause the financing providers to fund the full amount of the Debt Financing, except to the extent replaced with the Bond Financing. Parent shall give the Company prompt notice of any material breach or threatened material breach by any party to the Debt Commitment Letter of which Parent becomes aware. Without limiting Parent’s and Merger Sub’s other obligations under this Section 6.15, if a breach of the Debt Commitment Letter occurs, Parent shall (A) promptly notify the Company of such breach and (B) in consultation with the Company, use reasonable best efforts to obtain a loan alternative financing, in an amount sufficient to finance make the Improvements payments to be made by Parent and Merger Sub at the Effective Time upon terms and conditions not materially less favorable to refinance Parent or Merger Sub, as promptly as practicable following the Improvements from time to time during occurrence of such event. Without the Term. For such purpose only, Tenant shall have the right, with LandlordCompany’s prior written approval, consent (which shall not be unreasonably withheldconditioned, conditioned withheld or delayed), Parent shall not agree to assign all or part permit any amendment, replacement, reduction, supplement, or other modification of, or waive any of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyits material rights under, the “Trust Deed”). Landlord’s written approval Debt Commitment Letter, if such amendment, replacement, supplement or denial shall other modification or waiver would reasonably be provided expected to Tenant within twenty prevent, materially delay, or materially impede the consummation of the Debt Financing (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond or would add any material additional conditions to the request within twenty (20) Business Days, availability of the request shall be deemed approved. In the event Tenant assigns all Debt Financing or any portion replacement financing); provided that, for the avoidance of Tenant’s Interest doubt, Parent may (without the prior consent of the Company) replace and amend the Debt Commitment Letter to secure a loan permitted under this Section 14.2add lenders, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Notelead arrangers, book runners, syndication agents, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon similar entities that had not executed the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before Debt Commitment Letter as of the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on Agreement or to reflect changes to the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect Debt Commitment Letter made pursuant to the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest terms set forth in the Improvements Fee Letter (as defined in the Debt Commitment Letter). Neither Parent nor Merger Sub shall consent to any assignment or rights or obligations under the Premises;
Debt Commitment Letter (g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this LeaseI) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu approval of the foreclosure of the Trust DeedCompany, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are approval not to be commenced, and Landlord shall have the right, but not the obligation, within sixty unreasonably withheld or (60II) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee except for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated assignments under the terms of this Lease the Debt Commitment Letter. Parent and Merger Sub shall consult with and keep the Company reasonably informed of the status of their efforts to restore arrange the Improvements following such damage or destructionDebt Financing and the Bond Financing.
(pb) No loan Without limiting Parent’s other obligations under this Section 6.15, if the Marketing Period shall not have been completed by April 3, 2013, then unless the Bond Financing or Debt Financing shall have been previously consummated, Parent shall use its commercially reasonable efforts, including through the payment of commercially reasonable fees, to obtain an amendment to the Debt Commitment Letter on or prior to April 3, 2013 to provide that the “outside date” of “March 4, 2013, subject to one extension to June 3, 2013 to the extent that the Termination Date (as defined in the Acquisition Agreement on the date of this Commitment Letter) is extended to June 3, 2013 in accordance with the terms of the Acquisition Agreement” as set forth in the Debt Commitment Letter may be further extended, in an amount which exceeds seventy-five percent the event that the Marketing Period shall have begun but not been completed by the Termination Date, by a number of days equal to the lesser of (75%i) twenty (20) days plus four (4) business days following the Termination Date and (ii) the number of days then remaining in the fair market value of Market Period plus four (4) business days (such extended date, the Improvements at the time the loan is entered into“Extension Date”).
Appears in 2 contracts
Sources: Merger Agreement (Medicis Pharmaceutical Corp), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
Financing. Tenant may seek (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall use reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable, to arrange and obtain the Debt Financing and to consummate the Debt Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using reasonable best efforts to: (i) comply with and maintain in effect the Debt Commitment Letter (subject to any amendment, supplement, replacement, substitution, termination or other modification or waiver that is not prohibited by clause (d) below); (ii) satisfy, or obtain a loan waiver thereof, on a timely basis all Financing Conditions to finance the Improvements extent within the control of Parent and its Affiliates; (iii) negotiate, execute and deliver Debt Financing Documents to refinance the Improvements from time extent required to time during pay the Term. For such purpose onlyRequired Amount (after taking into account any cash on hand, Tenant shall have the right, with Landlordavailable lines of credit (including under Borrower’s prior written approvalexisting revolving credit and securitization facilities) and other sources of immediately available funds), which shall reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions (if any) related thereto) or on such other terms acceptable to Parent that would not constitute an Adverse Effect on Financing as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof; and (iv) in the event that the Offer Conditions have been satisfied or waived or, upon funding would be unreasonably withheldsatisfied, conditioned consummate the Debt Financing (including by instructing the Debt Financing Sources to fund the Debt Financing in accordance with the Debt Commitment Letter, and enforcing Parent’s rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing).
(b) From the date of this Agreement until the earlier of the Effective Time or delayedthe termination of this Agreement in accordance with Article IX, Parent and its Affiliates shall give the Company prompt notice of any material breach, repudiation or threatened material breach or repudiation by any party to assign all the Debt Commitment Letter of which Parent or part its Affiliates becomes aware; provided that none of Tenant’s interest under this Lease, as security Parent or Merger Sub shall be required to disclose or provide any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyinformation, the “Trust Deed”). Landlord’s written approval disclosure of which, in the judgement of Parent upon advice of outside counsel, is subject to attorney-client privilege or denial shall which would be provided to Tenant within twenty in violation of any confidentiality obligation.
(20c) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenantthe Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter (including the flex provisions (if any)) (other than as a result of the Company’s Interest breach of any provision of this Agreement or failure to secure a loan permitted under this satisfy the conditions set forth in Section 14.28.1 and Annex 1), then Parent and its Affiliates shall (i) promptly notify the following shall apply:
Company thereof and the reasons therefor, (aii) Landlord will enter into use reasonable best efforts to obtain alternative financing from the same or alternative Debt Financing Entities on terms and conditions, taken as a Lender Recognition Agreement whole, no less favorable to Parent than the Financing Conditions, not involving any conditions that would constitute an Adverse Effect on Financing (as defined below) as compared to those set forth in the Debt Commitment Letter delivered to the Company on the date hereof, that, when taken together with the Leasehold Mortgagee;
portion of the Debt Financing that remains available and any cash on hand, available lines of credit (bincluding under Borrower’s existing revolving credit and securitization facilities) The Landlord shall and other sources of immediately available funds, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative financing; provided that any provisions set forth in such new financing commitment relating to fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would reasonably be required expected to sign any Trust Deed reduce the aggregate principal amount of such alternative financing to be funded on the Closing Date or impose additional conditions precedent to the Note, or otherwise become obligated thereunder;
(c) No funding of such lien, charge or encumbrance shall constitute a lien or encumbrance upon alternative financing on the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;Closing Date.
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before From the date of expiration this Agreement until the earlier of the Effective Time or the termination of this Lease;
(e) The Trust Deed imposes no financial obligations on the LandlordAgreement in accordance with Article IX, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
the Company, Parent and its Affiliates shall not amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter or any Debt Financing Document if such amendment, modification, supplement, restatement, assignment, substitution or replacement would (mA) The Trust Deed shall provide that, prior impose additional conditions precedent or expand upon the conditions precedent to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu funding of the foreclosure Debt Financing, (B) reduce the amount of the Trust DeedDebt Financing or the net cash proceeds available from the Debt Financing to an amount that is less than the Required Amount (after taking into account any cash on hand, available lines of credit (including under Borrower’s existing revolving credit and securitization facilities) and other sources of immediately available funds), (C) prevent or materially delay or make materially less likely the holder funding of the Debt Financing (or beneficiary thereof shall notify Landlord in writing that such proceedings the satisfaction of the Financing Conditions) on the Closing Date or negotiations are to be commencedmaterially impair, and Landlord shall have delay or prevent the rightconsummation of the transactions contemplated by this Agreement, but not including the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed Offer and the indebtedness which it secures at a purchase price equal Merger, (D) materially adversely affect Parent’s ability to consummate the transactions contemplated by this Agreement, including the Offer and the Merger or (E) materially adversely impact the ability of Parent or any of its Affiliates’ to enforce their respective rights against the Debt Financing Sources or any of the other parties to the full amount then owing under said Trust DeedDebt Commitment Letters or the definitive agreements with respect thereto (clauses (A) through (E), each an “Adverse Effect on Financing”); provided that Parent may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, (1) to add and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.appoint additional arrangers,
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (Herc Holdings Inc)
Financing. Tenant may seek (a) Parent shall use, and shall cause its subsidiaries to obtain a loan use, their respective reasonable best efforts to finance the Improvements take, or cause to be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Improvements from time proceeds of the Financing on the terms and conditions (including any “flex” provisions) described in the Debt Commitment Letters, including executing and delivering all such documents and instruments as may be reasonably required thereunder and using (and causing its subsidiaries to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”use) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall applytheir respective reasonable best efforts to:
(ai) Landlord will comply with and maintain in effect the Financing and the Debt Commitment Letters;
(ii) negotiate and enter into definitive financing agreements with respect to the Financing on the terms and conditions contained in the Debt Commitment Letters (the “Financing Agreements”);
(iii) satisfy, or cause their respective Representatives to satisfy, as promptly as practicable and on a Lender Recognition Agreement timely basis all conditions to the Financing contemplated by the Debt Commitment Letters that are within its control (including by paying any commitment fees or other fees or deposits required by any fee letters relating to the Debt Commitment Letters);
(iv) comply with its obligations under the Leasehold MortgageeDebt Commitment Letters to the extent the failure to comply with such obligations would adversely impact the amount or timing of the Financing (taking into account the expected timing of the Marketing Period) or the availability of the Financing prior to the Offer Acceptance Time;
(v) enforce its rights under the Debt Commitment Letters to the extent that the failure to enforce would adversely impact the amount or timing of the Financing (taking into account the expected timing of the Marketing Period) or the availability of the Financing at the Offer Acceptance Time; and
(vi) cause the Financing Sources and any other Persons providing Financing to fund the Financing no later than the Offer Acceptance Time.
(b) The Landlord Parent shall not be required agree to sign or permit any Trust Deed amendment, supplement, termination, modification or the Notereplacement of, or otherwise become obligated thereunder;
(c) No such liengrant any waiver of, charge any condition, remedy or encumbrance shall constitute a lien other provision under any Debt Commitment Letter or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) Financing Agreement without the prior written consent of each Leasehold Mortgagee;
the Company if such amendment, supplement, termination, modification, replacement or waiver would or would reasonably be expected to (mi) The Trust Deed shall provide reduce the aggregate amount of the Financing from that contemplated by the Debt Commitment Letters delivered as of the date hereof to an amount such that the transactions contemplated hereby could not be consummated, (ii) impose any new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that would (x) delay or prevent the Offer or (y) make the funding of any portion of the Financing (or satisfaction of any condition to obtaining any portion of the Financing) less likely to occur or (iii) adversely impact in any material respect the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letters or the Financing Agreements (it being understood and agreed that, prior in any event, Parent may amend the Debt Commitment Letters to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu Debt Commitment Letters as of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms date of this Lease Agreement). Upon any amendment, supplement, modification or replacement of, or waiver of, any Debt Commitment Letter in accordance with this Section 6.14(b), Parent shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of promptly deliver a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under Company and references herein to “Debt Commitment Letters” shall include and mean such documents as amended, supplemented, modified, replaced or waived in compliance with this Section 6.14(b), and references to “Financing” shall include and mean the terms of financing contemplated by the Debt Commitment Letters as amended, supplemented, modified, replaced or waived in compliance with this Lease to restore the Improvements following such damage or destructionSection 6.14(b), as applicable.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (IntraLinks Holdings, Inc.), Merger Agreement (Synchronoss Technologies Inc)
Financing. Tenant (a) Each of Parent and Sub shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Financing Commitments; except that that Parent and Sub may seek (x) modify the terms and conditions of the Debt Financing Commitment so long as such modifications would not reasonably be expected to obtain a loan adversely impact the ability of Parent or Sub to finance timely consummate the Improvements transactions contemplated by this Agreement or the likelihood of consummation of the transactions contemplated by this Agreement and (y) replace or amend the Debt Financing Commitment to add lenders, arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as of the date hereof, or otherwise so long as such replacement or amendment would not reasonably be expected to adversely impact or delay in any material respect the ability of Parent or Sub to consummate the transactions contemplated hereby or the likelihood of the consummation of the transactions contemplated hereby. Subject to the terms and conditions of this Agreement (including Section 6.09(b) and Section 6.10), each of Parent and Sub shall use its reasonable best efforts (taking into account the anticipated timing of the Marketing Period) to take all actions, and to refinance do all things reasonably necessary, proper or advisable to arrange and obtain the Improvements from time to time during proceeds of the Term. For such purpose onlyFinancing (including the Bridge Loans (as defined in the Debt Financing Commitment), Tenant shall have if the right, funding of the Notes (as defined in the Debt Financing Commitment) as contemplated by the Debt Financing Commitment has not occurred substantially concurrently with Landlord’s or prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request Merger Closing) on the terms and conditions (including the related flex provisions) described in the Financing Commitments and the Fee Letter, including using its reasonable best efforts to (i) maintain in effect the Financing Commitments in accordance with the terms and subject to the conditions thereof, subject to the foregoing replacement and amendment rights with respect to the Debt Financing Commitment, (ii) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Parent and Sub obtaining the Financing at the Merger Closing set forth therein that are within twenty their control, (20iii) Business Daysnegotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions (including the flex provisions) contemplated by the Debt Financing Commitment and the Fee Letter (and provide copies thereof to the Company promptly upon their execution and otherwise keep the Company reasonably informed on a reasonably current basis of the status of their efforts to arrange the Debt Financing) and (iv) upon satisfaction of the conditions set forth in such definitive agreements, consummate the request shall be deemed approvedFinancing substantially concurrent with the Merger Closing. In Subject to the terms and conditions of this Agreement (including Section 6.09(b) and Section 6.10), in the event Tenant assigns all or any portion of Tenant’s Interest the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contained in the Debt Financing Commitment and the Fee Letter (other than due to secure the failure of a loan permitted condition to the consummation of the Debt Financing resulting from a breach of any representation, warranty, or covenant of the Company set forth in this Agreement), Parent shall promptly notify the Company and shall use its reasonable best efforts to arrange to obtain alternative debt financing (including from alternative sources) no later than August 19, 2011 in an amount such that the aggregate funds that would be available to Parent and Sub at the Merger Closing under such alternative debt financing (when combined with the Equity Financing and cash on hand of the Company) will be sufficient to pay all amounts contemplated by this Agreement to be paid by them and to perform their respective obligations under this Agreement, provided that neither Parent nor Sub shall be required to arrange for or obtain any such alternative debt financing (unless Parent and Sub otherwise determine in their sole discretion) on terms and conditions (including flex provisions) that are less favorable to the interests of Parent and Sub than the terms contained in the Debt Financing Commitment and the Fee Letter. Parent shall give the Company prompt notice of any breach by any party to any of the Financing Commitments of which Parent or Sub becomes aware, or any termination of any of any of the Financing Commitments. Parent shall promptly deliver to the Company true and complete copies of all agreements pursuant to which any such financing source shall have committed to provide Parent and Sub with any portion of the Financing. For purposes of this Section 14.26.09, then Section 6.10 and Section 5.03, references to “Financing” and “Debt Financing” shall include the following financing contemplated by the Financing Commitments as permitted by this Section 6.09 to be amended, modified or replaced and references to “Financing Commitments”, “Debt Financing Commitment” and “Fee Letter” shall apply:
(ainclude such documents as permitted by this Section 6.09(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.
(b) The Landlord Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.09 shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trusteerequire, and any lien which it createsin no event shall the reasonable best efforts of Parent or Sub be deemed or construed to require, shall expire on either Parent or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right Sub to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by bring any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession enforcement action against any source of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their Equity Financing to enforce its respective rights under this Leasethe Equity Financing Commitment, except that Parent shall use its reasonable best efforts to enforce, including by bringing suit for specific performance, the Leasehold Mortgagee who would be senior in priority Equity Financing Commitment solely if there were the Company seeks and is granted a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant decree of specific performance of the obligation to this Lease) without consummate the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior Merger Closing after all conditions to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment granting thereof set forth in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.Section
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Emergency Medical Services CORP)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement Prior to the Effective Time, Allied, A-Sub and B-Sub shall provide to the trustees under the Indentures all such notifications, certificates, opinions and other information and documents as may be required by the Indentures or the trustees under the Indentures in connection with the Leasehold Mortgagee;Merger and the payoff and termination of the Allied Credit Facility and the Allied Accounts Receivable Facility and, in each case, the release of collateral thereunder.
(b) The Landlord Republic shall not be required use its best efforts to sign any Trust Deed or the Notetake, or otherwise become obligated thereunder;cause to be taken, all things necessary, proper or advisable to arrange and consummate the financing (the “Debt Financing”) necessary to provide immediately available funds sufficient to refinance
(i) the Republic Credit Facility to the extent necessary or advisable, (ii) Allied’s $1.575 billion Revolving Credit Facility due March 2012, (iii) Allied’s $806.7 million Term Loan B due March 2014, referred to as the 2005 Term Loan, (iv) Allied’s $485 million Institutional Letter of Credit Facility due March 2014, (v) Allied’s $25 million Incremental Revolving Letter of Credit Facility due March 2012 and (vi) Allied’s $400 million Account Receivable Securitization program (the “Allied Accounts Receivable Facility”), including using reasonable best efforts to (A) enter into definitive agreements with respect thereto on terms and conditions acceptable to Allied (in its reasonable discretion) and (B) consummate the Debt Financing on or prior to the Effective Time. Republic shall (x) furnish correct and complete copies of all such definitive agreements to Allied promptly upon their execution, and (y) keep Allied informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and shall give Allied prompt notice of any material adverse change with respect to such Debt Financing and (z) use its best efforts to cause the lenders and the other Persons providing such Debt Financing to fund the Debt Financing on the Closing Date (including taking enforcement action to cause such lenders and other Persons to provide such Debt Financing). Prior to the Closing, Allied shall use its reasonable best efforts to cooperate with Republic in arranging, consummating and funding the Debt Financing, and if requested by Republic, the refinancing of the Republic Credit Facility, including making Allied’s officers available to the arrangers of the Debt Financing and such refinancing and potential lenders, and providing such information reasonably requested by the arrangers of the Debt Financing and such refinancing and potential lenders.
(c) No such lienNotwithstanding anything to the contrary in this Agreement, charge Republic acknowledges and agrees that the consummation of the Merger is not conditional upon receipt by Republic or encumbrance shall constitute a lien or encumbrance upon any of its Affiliates of the Landlord’s fee title in proceeds of the Premises or their reversionary interest in the Improvements;Debt Financing.
(d) Any interest in the Premises which the Trust Deed establishes in a trusteeEach of Republic and Allied shall use its respective best efforts to not do, and to not cause or permit to be done, anything that would reasonably be expected to cause the condition to closing set forth in Section 8.03(e) to not be satisfied and shall use its respective best efforts to take any lien which it creates, shall expire on or before actions necessary (subject to the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlordother’s right consent if 46 required pursuant to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectivelySection 6.01(a) or reversionary interest Section 6.01(b), as applicable) to ensure that the condition to closing set forth in the Improvements or the Premises;
(gSection 8.03(e) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionsatisfied.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Republic Services Inc)
Financing. Tenant may seek (a) Parent has delivered to obtain the Company true, complete and correct copies of (i) an executed equity commitment letter in effect as of the date hereof, including all exhibits, schedules, annexes and amendments thereto (the “Equity Commitment Letter”) from the Guarantors, pursuant to which the Guarantors have committed to provide to Parent, subject to the terms and conditions therein, equity financing in the amount set forth therein for the purposes of financing a loan to finance portion of the Improvements aggregate Merger Consideration, Warrant Consideration and to refinance LTI Award Consideration payable at the Improvements from time to time during Closing under this Agreement (the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval“Equity Financing”), which shall not be unreasonably withheldEquity Commitment Letter provides that the Company is a third party beneficiary thereof and is entitled to enforce such agreements, conditioned or delayedin each case to the extent expressly provided for in the enforcement provisions of the Equity Commitment Letter, to assign and (ii) an executed debt financing commitment letter from the Lenders in effect as of the date hereof, including all or part of Tenant’s interest under this Leaseexhibits, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note schedules, annexes and a trust deed or mortgage amendments thereto, and each fee letter associated therewith (collectively, the “Trust DeedFee Letter,” and together with such debt financing commitment letter, the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Commitment Letters”) (it being understood that the Fee Letter may be customarily redacted; provided, however, that no provisions that, or that could reasonably be expected to, adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing at the Effective Time may be redacted), pursuant to which the Lenders have committed to provide to Parent and/or Merger Sub, subject to the terms and conditions therein, debt financing in the amounts set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”). Landlord’s written approval There are no side letters or denial shall other agreements, Contracts, understandings or arrangements to which Parent or Merger Sub is a party that could reasonably be provided expected to Tenant within twenty (20) Business Days adversely affect the availability of Tenant’s written request, which shall contain the information regarding Financing other than as expressly set forth in the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Commitment Letters delivered to the request within twenty Company pursuant to this Section 4.9(a) (20it being understood and agreed that: (i) Business Days, the request shall be deemed approved. In the event Tenant assigns Parent or a subsidiary thereof may issue senior notes or other debt securities in lieu of all or any a portion of Tenant’s Interest the senior bridge facility referred to secure in the Debt Commitment Letter, (ii) Parent or its affiliates may, in its or their sole and absolute discretion (but shall not be required to), issue preferred equity at the Closing (in lieu of the senior notes or other debt securities in lieu of a loan permitted under this Section 14.2portion of the senior bridge facility) to Permitted Preferred Purchasers, then and (iii) Permitted Co-Investors may be added to the following shall apply:
Equity Commitment Letter or deliver an equity commitment letter of their own in substantially similar form (aexcept for amount) Landlord will enter into to the Equity Commitment Letter for a Lender Recognition Agreement with portion of the Leasehold Mortgagee;Equity Financing).
(b) The Landlord shall As of the date of this Agreement: (i) each Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of each of the Guarantors, Parent and Merger Sub, as applicable, and to the knowledge of Parent, each of the other parties thereto, in each case, except as enforcement may be limited by general principles of equity, whether applied in a court of Law or a court of equity, and by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting creditors’ rights and remedies generally; (ii) each Commitment Letter has not been amended or modified in any respect and no such amendment or modification is contemplated or pending (other than amendments or modifications to the Debt Commitment Letter solely (A) to add lenders, lead arrangers, bookrunners, syndication agents and similar entities, (B) in connection with the implementation of any “market flex” provisions or “securities demand” terms contained in the Debt Commitment Letter, (C) to implement a Replacement Commitment Facility (as defined in the Debt Commitment Letter entered into as of the date hereof) or issue preferred equity at the Closing (in lieu of the senior notes or other debt securities in lieu of a portion of the senior bridge facility) to Permitted Preferred Purchasers, and (D) amendments to the Equity Commitment Letter to add Permitted Co-Investors or to replace a portion of the Equity Financing with a substantially similar equity commitment letter of any Permitted Co-Investor); and (iii) the commitments contained in the Commitment Letters have not been withdrawn, terminated, reduced or rescinded in any respect (other than as permitted in the immediately preceding clause (ii)(D)). As of the date of this Agreement, Parent has paid (or caused to be paid) in full any and all fees (including commitment fees and other fees) required to sign any Trust Deed be paid under the Debt Commitment Letter that are payable on or prior to the Note, or otherwise become obligated thereunder;date of this Agreement.
(c) No such lienAs of the date of this Agreement, charge there are no conditions precedent or encumbrance shall other contractual contingencies (including pursuant to any “flex” provisions in the Fee Letter or otherwise) related to the funding of the full amount (or any portion) of the Financing except as expressly set forth in the Commitment Letters. As of the date of this Agreement, to the knowledge of the Parent, no event has occurred which (with or without notice, lapse of time or both) would reasonably be expected to constitute a lien failure to satisfy a condition precedent to be satisfied by any Guarantor, Parent or encumbrance upon Merger Sub, as applicable, for the Landlord’s fee title in Guarantors’ and Lenders’ obligations to fund the Premises or their reversionary interest in the Improvements;Equity Financing and Debt Financing, respectively.
(d) Any interest Assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, completion of the Marketing Period and that the Financing is funded in accordance with the Commitment Letters, the net proceeds contemplated by the Commitment Letters, will, in the Premises which aggregate, constitute the Trust Deed establishes funds necessary to satisfy Parent’s and Merger Sub’s payment obligations under this Agreement at the Effective Time, including payment in a trusteecash of the aggregate Merger Consideration, Warrant Consideration and LTI Award Consideration payable at the Effective Time, refinancing of the Company’s indebtedness outstanding under the Credit Agreement and the 2021 First Lien Notes (in each case, including all applicable interest, fees and premiums), and any lien which it createsto pay all related fees and expenses required to be paid by Parent and Merger Sub in connection with the Merger, shall expire on or before in each case, at the date of expiration of this Lease;Effective Time (such amount, the “Required Financing Amount”).
(e) Parent has caused to be delivered to the Company a true, complete and correct copy of the duly executed Limited Guarantee. The Trust Deed imposes Limited Guarantee is in full force and effect, has not been amended, modified, withdrawn or rescinded in any respect, and is the legal, valid, binding and enforceable obligation of each of the Guarantors. As of the date hereof, no financial obligations event has occurred or circumstance exists which, with or without notice, lapse of time or both, would constitute a default or breach on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution part of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated Guarantor under the terms of this Lease to restore the Improvements following such damage or destructionLimited Guarantee.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)
Financing. Tenant may seek to obtain a loan to finance the Improvements and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord As of the date of the Debt Commitment Letter, neither Buyer Parent nor any of its Affiliates will enter have entered into any agreement, side letter or other arrangement relating to the financing of the Transactions that could affect the availability of the Debt Financing on the Closing Date, other than as described in the Debt Commitment Letter and any fee letters or engagement letters related to the Debt Commitment Letter. As of the date of the Debt Commitment Letter, the Debt Commitment Letter will be in full force and effect and will represent a Lender Recognition Agreement valid, binding and enforceable obligation of Buyer Parent and to Buyer Parent’s Knowledge each other party thereto, to provide the financing contemplated thereby subject only to the satisfaction or waiver of the Debt Financing Conditions and subject to the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors and that equitable remedies, including specific performance, are discretionary and may not be ordered. Buyer Parent will have fully paid (or caused to be paid) any and all commitment fees and other amounts that are due and payable on or prior to the date of the Debt Commitment Letter in connection with the Leasehold Mortgagee;Debt Financing. As of the date of the Debt Commitment Letter, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 10.3(a) is satisfied, no event will have occurred which, with or without notice, lapse of time or both, would reasonably constitute a breach or default on the part of Buyer Parent or, to Buyer Parent’s Knowledge, any other party thereto under the Debt Commitment Letter. As of the date of the Debt Commitment Letter, assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 10.3(a) is satisfied and performance by Seller Parent in all material respects of its obligations under Section 6.1, Section 9.4 and Section 9.14 of this Agreement, Buyer Parent will have no reason to believe that it or any other party thereto will be unable to satisfy on a timely basis its obligations under the Debt Commitment Letter. As of the date of the Debt Commitment Letter, there will be no conditions precedent related to the funding of the full amount of the Debt Financing, other than the Debt Financing Conditions. Assuming the accuracy of the representations and warranties set forth in Article IV such that the condition set forth in Section 10.3(a) is satisfied and the satisfaction of the conditions set forth in Section 10.3(c) and performance in all material respects by Sellers of their obligations under Section 6.1, Section 9.4 and Section 9.14 of this Agreement, as of the date of the Debt Commitment Letter, Buyer Parent will have no reason to believe that (i) any of the Debt Financing Conditions will not be satisfied or (ii) the Debt Financing will not be made available to Buyer Parent on the Closing Date.
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
Assuming (i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession accuracy of the leasehold interest shall be deemed extended representations and warranties set forth in Article IV such that the condition set forth in Section 10.3(a) is satisfied, (ii) the satisfaction of the conditions set forth in Section 10.3(c), (iii) the performance in all material respects by Sellers of their obligations under Section 6.1, Section 9.4 and Section 9.14 of this Agreement Buyer Parent will have at the number of days of delay occasioned by judicial restriction Closing, directly or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two through one or more Leasehold Mortgagees exercise their rights under this Leaseaffiliates, all funds necessary to consummate the Leasehold Mortgagee who would Transactions at the Closing Date, including the making of all required payments in connection with the Transactions at the Closing Date, including payment of the Cash Consideration and all other amounts to be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination paid pursuant to this Lease) without Agreement and associated costs and expenses of the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior Transactions on the Closing Date. Notwithstanding anything to the institution contrary contained herein, in no event shall the receipt or availability of any proceedings funds or financing by Buyer Parent or any of its Affiliates be a condition to foreclose the Trust Deed or any of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionBuyer Parent’s obligations hereunder.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Master Purchase Agreement (Allergan PLC), Master Purchase Agreement (Teva Pharmaceutical Industries LTD)
Financing. Tenant may seek (a) The Purchaser and Finance Merger Sub: (i) shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the Debt Financing and the Equity Financing on the terms and conditions (including flex provisions) described in the Debt Commitment Letter and the Fee Letter and the Equity Commitment Letters, respectively, to the extent necessary to consummate the Contemplated Transactions, including seeking to enforce the terms of the Equity Commitment Letters; provided, however, that in no event shall the Purchaser and Finance Merger Sub be required to initiate any Action to cause any Committed Lender to fund the Debt Financing; (ii) shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Debt Commitment Letter, the Fee Letter or any Definitive Debt Agreement, in each case, if such amendment, modification, consent or waiver (x) reduces the aggregate amount of the Debt Financing below an amount, together with any available cash of the Purchaser and Finance Merger Sub, required to pay the Required Payment Amount, (y) imposes any new or additional conditions to the Debt Financing or otherwise adversely expands, amends or modifies any other provision of the Debt Commitment Letter, the Fee Letter or such Definitive Debt Agreement (including, without limitation, the Debt Financing Conditions), in a loan manner that would reasonably be expected to finance prevent or materially delay the Improvements Closing, or (z) adversely impacts the ability of the Purchaser and Finance Merger Sub to refinance enforce its rights prior to Closing against the Improvements from time Committed Lenders or any other party to time during the TermDebt Commitment Letter, the Fee Letter or any Definitive Debt Agreement to timely consummate the Contemplated Transactions; provided, that the Purchaser and Finance Merger Sub may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof; provided that the aggregate principal amount of the Debt Financing is not reduced as a result of such amendment unless, contemporaneously with such amendment, the Equity Commitment Letters are amended to increase the commitments thereunder in respect of the Equity Financing by an amount equal to such reduction in the committed Debt Financing; (iii) shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Equity Commitment Letters; (iv) shall not permit, or consent to, any assignment of rights or obligations under the Debt Commitment Letter other than as explicitly permitted pursuant to the proviso to clause (ii) above; and (v) shall not permit, or consent to, any assignment of rights or obligations under the Equity Commitment Letters; provided, that any Sponsor may allocate all or a portion of its obligations to fund the Commitment Amount (as defined in the applicable Equity Commitment Letter) to an Affiliate (as defined in the applicable Equity Commitment Letter) or to an entity sponsored, co-sponsored, managed by or advised by an Affiliate (as defined in the applicable Equity Commitment Letter) of such Sponsor, but without such allocation relieving or otherwise diminishing the obligation of such Sponsor to fund the Commitment Amount in full; and provided, further, that any such allocation shall not relieve such Sponsor of its obligations under the applicable Equity Commitment Letter to fund such Sponsor’s entire Commitment Amount (as defined in the applicable Equity Commitment Letter) except to the extent the entire Commitment Amount (prior to giving effect to such allocation and without giving effect to any amount funded under any other Equity Commitment Letter) is funded to the Purchaser in accordance with the terms of such Equity Commitment Letter. The Purchaser shall promptly deliver to the Company copies of any such amendment, modification, consent or waiver. For purposes of this Agreement, references to “Financing” or “Debt Financing,” as applicable, shall include the financing contemplated by the Commitment Letters as permitted to be amended, modified or waived by this Section 7.07(a), and references to “Debt Commitment Letter” shall include such purpose onlydocuments to the extent amended, Tenant modified or waived as permitted by this Section 7.07(a).
(b) Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 7.07 shall have require, and in no event shall the rightreasonable best efforts of the Purchaser be deemed or construed to require, with Landlord’s prior written approvalthe Purchaser or any Affiliate thereof to (i) seek the Equity Financing from any source other than those counterparty to, which shall not be unreasonably withheldor in any amount in excess of that contemplated by, conditioned the Equity Commitment Letter, or delayed, to assign all (ii) pay any fees materially in excess of those contemplated by the Debt Commitment Letter or part of Tenant’s interest under this Lease, as security the related fee letter in respect thereof (after giving effect to any Institutional Lender “flex” terms with respect thereto).
(a “Leasehold Mortgagee”c) which has advanced such funds Without limiting the generality of Section 7.07(a), the Purchaser shall: (i) maintain in effect each of the Commitment Letters and each Definitive Debt Agreement in accordance with the terms and subject to Tenant pursuant the conditions thereof until the Closing Date and the consummation of the transactions contemplated hereby to a promissory note occur on the Closing Date; (ii) negotiate and a trust deed or mortgage enter into definitive agreements with respect to the Debt Financing (collectively, the “Trust DeedDefinitive Debt Agreements”) on the terms and conditions (including the flex provisions) contained in the Debt Commitment Letter and the Fee Letter or on other terms not materially less favorable, taken as a whole, with respect to the Purchaser and Finance Merger Sub as to conditionality than the terms provided in the Debt Commitment Letter; and (iii) satisfy on a timely basis all of the Debt Financing Conditions and any other conditions within Purchaser’s control to the funding of the Financing in the Commitment Letters and the Definitive Debt Agreements on or prior to the Closing Date or, if deemed advisable by the Purchaser, seek the waiver of conditions applicable to the Purchaser and Finance Merger Sub in the Debt Commitment Letter (other than any condition where the failure to be so satisfied is a direct result of Trilogy’s failure to furnish information required to be delivered by such Trilogy Party under Section 7.07(d)). Landlord’s The Purchaser and Finance Merger Sub shall give the Sellers and the Trilogy Parties prompt notice of (A) any breach, default, termination or repudiation by any party to any of the Commitment Letters of which the Purchaser or Finance Merger Sub becomes aware and (B) the receipt by the Purchaser or Finance Merger Sub of any written approval notice or denial shall be provided other written communication from any Debt Financing Source with respect to Tenant within twenty (20) Business Days any breach, default, termination or repudiation by any party to any Commitment Letters of Tenant’s written request, which shall contain any provisions of the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;Commitment Letters.
(d) Any interest If any portion of the Debt Financing necessary to consummate the Contemplated Transactions becomes unavailable, the Purchaser and Finance Merger Sub shall (i) promptly notify the Representative thereof, and (ii) use its reasonable best efforts to arrange to obtain in replacement thereof, as soon as reasonably practicable, any such portion from alternative sources on terms and conditions not materially less favorable to the Purchaser and Finance Merger Sub as those contained in the Premises Debt Commitment Letter and, unless otherwise consented to by the Sellers, on a basis that is not subject to any condition precedent materially less favorable to the Purchaser or Finance Merger Sub than the Debt Financing Conditions (“Alternative Financing”). Once obtained, the Purchaser and Finance Merger Sub shall provide the Representative with all agreements pursuant to which any such alternative source shall have committed to provide the Trust Deed establishes Purchaser or Finance Merger Sub with any portion of the Debt Financing and promptly provide the Representative with such information it may reasonably request regarding any alternative financing arrangements or plans. Upon the entry by the Purchaser or Finance Merger Sub into any commitment letter for an Alternative Financing required pursuant to this clause (c), the term “Debt Commitment Letter” shall include the commitment letter in a trustee, respect of such Alternative Financing and the term “Fee Letter” shall include any lien which it creates, fee letter entered into in respect of such Alternative Financing and the appropriate changes shall expire on or before be deemed to be made to the date of expiration of this Lease;terms “Debt Financing Sources,” “Committed Lenders” and “Debt Financing.”
(e) The Trust Deed imposes no financial obligations Prior to the Closing, each of the Trilogy Parties shall provide, and the Company shall cause its respective Subsidiaries and Affiliates to provide, and shall respectively use their reasonable best efforts to cause their respective representatives, including legal and accounting, to provide, all cooperation reasonably requested by the Purchaser that is customary in connection with the arrangement of syndicated loans similar to the Debt Financing or other acquisition loan financings (provided that such requested cooperation is made on reasonable notice and does not unreasonably interfere with the Landlordongoing operations of the Business, contingent the Company or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to conveyits Subsidiaries and Affiliates), mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;including cooperation that consists of:
(i) The Landlord will accept performance under this Lease furnishing the Purchaser with such pertinent information (other than financial information, which is covered by any Leasehold Mortgagee Section 7.07(e)(ii)) regarding the Company or its Subsidiaries (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Company and its Subsidiaries) that is customarily provided by a borrower in connection with the arrangement of syndicated loans similar to the Debt Financing or other acquisition loan financings, in each case, as though reasonably requested by the same had been performed Purchaser, for the purposes of assisting the Purchaser in its preparation of customary information documents or rating agency or lender presentations relating to such arrangement of loans (other than financial information, which is covered by TenantSection 7.07(e)(ii));
(jii) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed (A) furnishing the Purchaser with foreclosure proceedings, or to obtain possession the unaudited financial statements of the leasehold interest Company and its Subsidiaries, on a consolidated basis, for any fiscal quarter ended after the date of the most recent audited financial statements and more than 45 days prior to Closing and informing the Purchaser if the Sellers, the Company or any of its Subsidiaries shall have knowledge of any fact that most likely requires the restatement of such financial statements, (B) assisting the Purchaser with the Purchaser’s preparation of the specific pro forma financial statements of the Company and its Subsidiaries that are required to be delivered under clause (16) under “Conditions Precedent to Initial Funding” in Exhibit A of the Debt Commitment Letter (as in effect on the date hereof), and (C) to the extent reasonably required by the Debt Financing Sources to be included in any marketing documents related to the Debt Financing, assisting the Purchaser with the Purchaser’s preparation of financial information regarding the Company and its Subsidiaries that are reasonably and readily derivable from the financial statements and financial records of the Company and its Subsidiaries required to be furnished under clause (A) above; provided, however, that nothing in this Section 7.07(e)(ii) shall be deemed extended by to impose on the number of days of delay occasioned by judicial restriction Company or application its Subsidiaries an obligation to re-issue, restate or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s controlotherwise furnish financial statements that are not otherwise specifically required under this Agreement;
(kiii) If two assisting in preparation for and participating and causing senior management of the Company and its Subsidiaries to participate in a reasonable number of meetings, drafting sessions and due diligence sessions (including accounting diligence sessions) (including one or more Leasehold Mortgagees exercise their rights under this Leaselender meetings and calls with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders, for the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevailDebt Financing;
(liv) This Lease assisting with the preparation by the Purchaser of customary materials for lender information memoranda and similar documents, including the execution and delivery of customary representation letters in connection with bank information memoranda and reviewing and commenting on the Purchaser’s draft of a business description and “Management’s Discussion and Analysis” of the Company’s financial statements to be included in marketing materials contemplated by the Debt Financing; provided, that (x) this clause (iv) shall not require the Company to provide any information (financial or otherwise) not otherwise required to be materially modifieddelivered by the Company under clause (i) or (ii) above, amended and (y) any lender information memoranda, “bank books”, marketing materials, authorization letters and any other documents required, or surrendered otherwise delivered to any, Committed Lender or prospective Debt Financing Source, in connection with the Debt Financing shall contain (except upon termination pursuant A) disclosure reflecting the Purchaser and its Subsidiaries post-Closing as the obligors, and (B) disclosures and disclaimers exculpating the Representative, the Sellers, the Trilogy Parties and their respective Affiliates with respect to this Lease) without any liability related to the prior written consent of each Leasehold Mortgageecontents or use thereof by the recipients thereof;
(mv) The Trust Deed assisting the Purchaser in the Purchaser’s preparation, negotiation and execution of one or more credit agreements, pledge agreements, security agreements, guarantees and other definitive financing documents or other certificates, customary closing certificates and documents as may be reasonably requested by the Purchaser and that are required to be obtained under the Debt Commitment Letter at Closing (including cooperation in connection with the pay-off of existing Indebtedness to the extent contemplated by this Agreement and the release of liens securing such existing Indebtedness); provided, that no obligation of the Company or any of its Subsidiaries under any such agreements or documents shall provide thatbe effective until the Closing;
(vi) providing customary authorization letters to the Debt Financing Sources as reasonably requested by the Purchaser in writing, authorizing the distribution of information to prospective lenders, subject to customary confidentiality undertakings;
(vii) to the extent reasonably requested by the Debt Financing Sources for the purposes of obtaining customary waivers, consents, estoppels and approvals in connection with the Debt Financing from other parties to material licenses, leases, encumbrances and Contracts relating to the Company or its Subsidiaries, using their respective reasonable best efforts to arrange discussions among the Purchaser, the Debt Financing Sources and their respective representatives with such other parties to such material licenses, leases, encumbrances and Contracts as of the Closing;
(viii) taking all reasonable actions necessary to (A) permit the Debt Financing Sources to evaluate the Company’s current assets and cash for the purposes of establishing collateral arrangements by the Purchaser as of the Closing and to assist with other customary collateral audits and due diligence examinations and (B) establish bank and other accounts and, effective as of the Closing, blocked account agreements and lock box arrangements and establish other collateral arrangements to the extent necessary in connection with the Debt Financing; and
(ix) providing to the Purchaser for further distribution to the Debt Financing Sources all documentation and other information reasonably required under applicable “know your customer” and anti-money laundering rules and regulations in connection with the Debt Financing. Notwithstanding anything to the contrary in this Section 7.07(e): (A) no Seller, Trilogy Party or any of their respective Subsidiaries or Affiliates or any of their respective representatives shall be required to pay any commitment or other fee or incur any other liability or expense in connection with the Debt Financing (in the case of the Trilogy Parties, prior to the institution Closing); (B) no Seller, Trilogy Party or any of any proceedings to foreclose the Trust Deed their respective Subsidiaries or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord Affiliates shall be notified by the Leasehold Mortgagee within thirty (30) days of required to take any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage action or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.do anything that wou
Appears in 2 contracts
Sources: Equity Purchase Agreement (NorthStar Healthcare Income, Inc.), Equity Purchase Agreement (Griffin-American Healthcare REIT III, Inc.)
Financing. Tenant may seek At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to obtain a loan any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to finance fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Improvements Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to refinance the Improvements from time to time during the Term. For such purpose onlyArticle II (including all amounts payable in respect of Company Stock Options, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all or part of Tenant’s interest Company Restricted Shares and Company RSUs under this LeaseAgreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as security a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, ▇▇▇▇▇▇ has delivered to any Institutional Lender the Company (a) a “Leasehold Mortgagee”) which has advanced correct and complete fully executed copy of the debt commitment letter, dated as of even date herewith, including all exhibits, schedules, annexes and amendments to such funds to Tenant pursuant to a promissory note and a trust deed letter in effect as of the date of this Agreement (as may be amended or mortgage (collectivelymodified in accordance with the terms hereof, the “Trust DeedDebt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing Letters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, and subject to the terms and conditions of, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Debt Financing”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days As of Tenant’s written requestthe date hereof, which shall contain neither the information regarding the assignee’s financial strengthDebt Commitment Letter nor any Fee Letter has been amended, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed or the Note, restated or otherwise become obligated thereunder;
(c) No such lien, charge modified or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises which the Trust Deed establishes in a trustee, and any lien which it creates, shall expire on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber or otherwise hypothecate in any way the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed waived prior to the execution and/or recording and delivery of same this Agreement, no amendment, restatement or other modification is contemplated and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by Tenantthe Debt Commitment Letter). As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent to the obligation to make the Debt Financing available to Parent pursuant to the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date of this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other parties thereto under any term or condition of the Debt Commitment Letter, and shall accompany such notice with a true copy of such Trust Deed and (ii) assuming the Note secured thereby; and
(o) All insurance proceeds arising from damage satisfaction or destruction waiver of the Improvements shall conditions set forth in Section 6.01 and Section 6.02 and taking into account the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing or any other funds necessary to pay the Required Amount will not be available for restoration thereof to Parent on the Closing Date. Parent has fully paid (or caused to be paid) all commitment fees or other fees to the extent Tenant is obligated under required to be paid on or prior to the terms date of this Lease Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to restore the Improvements following such damage or destruction.
Debt Financing (p) No loan may be in an none of which reduces the amount which exceeds seventy-five percent (75%) of the fair market value Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Improvements at Debt Financing), as of the time date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the loan Debt Commitment Letter to which Parent or any of its Affiliates is entered intoa party, other than as expressly set forth in the Financing Letters.
Appears in 2 contracts
Sources: Merger Agreement (Regal Rexnord Corp), Merger Agreement (Altra Industrial Motion Corp.)
Financing. Tenant may seek (a) Each of Parent and Merger Sub shall use reasonable best efforts to cause BI-LO Holding, LLC (“BI-LO Holding”) to obtain the Debt Financing on the terms and conditions described in the Debt Financing Commitments and the Fee Letter, including using reasonable best efforts to (i) negotiate definitive agreements with respect thereto on the terms and conditions contained therein, (ii) satisfy on a loan timely basis all conditions applicable to finance BI-LO Holding, Parent and Merger Sub in the Improvements Debt Financing Commitments and the Fee Letter that are within its or their respective Affiliates’ control (including their respective direct and indirect parent companies and their Affiliates), (iii) comply with its obligations under the Financing Commitments, and (iv) consummate the Financing at or prior to refinance the Improvements Closing Date (it being understood that it is not a condition to Closing under this Agreement, nor the consummation of the Merger, for Parent or Merger Sub to obtain the Financing or any alternative financing). Notwithstanding anything to the contrary in the immediately preceding sentence, Parent and Merger Sub shall, and shall cause each of BI-LO Holding and the Sponsor and their respective Affiliates to, take all actions reasonably necessary to maintain in effect the Financing Commitments.
(b) Parent shall keep the Company informed on a regular basis and in reasonable detail of the status of its and BI-LO Holding’s efforts to arrange the Debt Financing (including promptly providing the Company with copies of all definitive agreements related to the Debt Financing). Parent shall give the Company prompt notice (i) of any material breach or default by any party to any of the Financing Commitments or definitive agreements related to the Financing of which Parent becomes aware, (ii) of the receipt of any written notice or other written communication, in each case from any Financing Source with respect to (A) any material actual or potential breach or default, or any termination or repudiation by any party to any of the Financing Commitments or definitive agreements related to the Financing of any provisions of the Financing Commitments or definitive agreements related to the Financing or (B) any material dispute or disagreement between or among any parties to any of the Financing Commitments 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 (iii) if at any time for any reason Parent believes in good faith that it or BI-LO Holding will not be able to obtain all or any material portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Financing Commitments and the Fee Letter or definitive agreements related to the Financing. As soon as practicable after the Company delivers to Parent a written request, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (i), (ii) or (iii) of the immediately preceding sentence.
(c) Parent and BI-LO Holding shall have the right from time to time during to amend, replace, supplement or otherwise modify, or waive any of its rights under the Term. For such purpose onlyDebt Financing Commitments, Tenant shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, to assign all substitute other debt or part of Tenant’s interest under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond to the request within twenty (20) Business Days, the request shall be deemed approved. In the event Tenant assigns equity financing for all or any portion of Tenant’s Interest the Financing from the same or alternative Financing Sources; provided, that any such amendment, replacement, supplement, modification or waiver shall not (i) expand upon the conditions precedent to secure a loan permitted under the Financing as set forth in the Financing Commitments and the Fee Letter in any way or (ii) be reasonably expected to prevent or cause any delay of the consummation of the Merger and the other transactions contemplated by this Agreement (taking into account any market flex provisions). For purposes of this Section 14.25.11, then references to “Financing” shall include the financing contemplated by the Financing Commitments and the Fee Letter as permitted to be amended or modified by this paragraph (c) and references to “Financing Commitments” and “Debt Financing Commitments” shall include such documents as permitted to be amended or modified by this paragraph (c). In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Financing Commitments and the Fee Letter, Parent shall promptly so notify the Company and shall cause BI-LO Holding to use reasonable best efforts to promptly obtain alternative financing on terms not materially less beneficial to BI-LO Holding and Parent (as determined in the reasonable judgment of BI-LO Holding and Parent, taking into account the flex provisions set forth in the Fee Letter) and in an amount sufficient to consummate the Merger, the Refinancing and the other transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event.
(d) The Company shall applyuse its reasonable best efforts to, and shall cause its Subsidiaries and its and their respective Representatives to use their reasonable best efforts to, at Parent’s sole cost and expense, promptly provide to Parent and Merger Sub all cooperation reasonably requested by Parent in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries), including:
(ai) Landlord will enter into participating in a Lender Recognition Agreement reasonable number of meetings (including customary one-on-one meetings with the Leasehold Mortgageeparties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer and General Counsel of the Company and other members of senior management and Representatives of the Company), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing, in each case, with reasonable advance notice and at reasonable locations;
(bii) The Landlord cooperating reasonably with the marketing efforts of Parent, BI-LO Holding and the Financing Sources for all or any portion of the Debt Financing;
(iii) assisting reasonably with the preparation of rating agency presentations, offering documents, bank information memoranda, lender presentations and similar documents necessary or customary for use in connection with the Financing, including execution and delivery of customary representation letters in connection with bank information memoranda;
(iv) as promptly as practical and to the extent not furnished to Parent prior to the date hereof, furnishing Parent and the Financing Sources (A) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company (or its predecessors, as applicable) for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date, which shall be prepared in accordance with GAAP, and (B) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company (or its predecessors, as applicable) for each fiscal quarter ended at least 40 days prior to the Closing Date (other than the fourth fiscal quarter of any year), which shall be prepared in accordance with GAAP (such information, the “Required Information”);
(v) providing all relevant information with respect to collateral and providing access to Parent and its Financing Sources to allow them to conduct audit examinations and appraisals with respect to such collateral;
(vi) obtaining, no sooner than the Effective Time, surveys, title insurance and other like documentation customary for financing similar to the Debt Financing (except that the Company shall not be required to sign obtain or provide any Trust Deed or legal opinions from any counsel to the Note, or otherwise become obligated thereunderCompany);
(cvii) No executing and delivering, as of the Effective Time, definitive financing documentation, including pledge and security documents and certificates, documents and instruments relating to guarantees, collateral and other matters ancillary to the Financing (including a customary certificate of the Chief Financial Officer of the Company with respect to solvency matters), and otherwise reasonably facilitating the pledging of collateral and the providing of the guarantees; provided that no obligation of the Company under any such lienagreement, charge pledge or encumbrance grant shall constitute a lien or encumbrance upon be effective until the Landlord’s fee title in the Premises or their reversionary interest in the ImprovementsEffective Time;
(dviii) Any interest cooperating reasonably in facilitating the Premises termination of the Second Amended and Restated Credit Agreement, dated March 18, 2011, by and among the Company, the lenders party thereto, and ▇▇▇▇▇ Fargo Bank, National Association, as administration agent, and obtaining all documentation reasonably requested by the Financing Sources evidencing the termination of such Indebtedness and the release of all related liens;
(ix) cooperating reasonably in facilitating the cancellation and replacement, or rollover into the Debt Financing, of all outstanding letters of credit and the termination of any related letter of credit agreements to which the Trust Deed establishes Company or any of its Subsidiaries is a party and obtaining all documentation reasonably requested by the Financing Sources evidencing the termination of such Indebtedness and the release of all related liens; and
(x) taking at the Effective Time all corporate actions reasonably necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof, together with the cash at the Company and its Subsidiaries, to be made available to Parent on the Closing Date to consummate the Merger. The Company will periodically update the Required Information included in a trustee, and any lien which it creates, shall expire on bank information or before other similar offering memorandum to be used to obtain the date Debt Financing in order to ensure that such Required Information does not contain any untrue statement of expiration of this Lease;material fact or omit to state any material fact necessary in order to make the statements contained therein not misleading.
(e) The Trust Deed imposes no financial obligations on Company hereby consents to the Landlord, contingent use of its and its Subsidiaries’ logos in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended to nor reasonably likely to harm or otherwise;disparage the Company and its Subsidiaries.
(f) The Trust Deed Parent shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs and expenses incurred by the Company or its Subsidiaries in connection with their cooperation as described in this Section 5.11. Parent and Merger Sub acknowledge and agree that the Company and its Affiliates and their respective Representatives shall neither subordinate nor affect not have any responsibility for, or incur any liability to any Person under or in connection with, the Landlord’s right arrangement of the Financing or any alternative financing that Parent or Merger Sub may raise in connection with the transactions contemplated by this Agreement if the Closing does not occur. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith (other than information provided in writing by the Company or its Subsidiaries expressly for use in connection therewith). Notwithstanding anything to conveythe contrary in this Section 5.11, mortgage, encumber the Company shall not be required to become subject to any obligations or otherwise hypothecate in liabilities with respect to any way document or agreement prior to the Landlord’s fee or leasehold title (respectively) or reversionary interest in the Improvements or the Premises;Effective Time.
(g) Except as otherwise provided herein, The obligations of the Company set forth in this Section 5.11 are the sole obligations of the Company with respect to the Debt Financing and no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject to all conditions, covenants and restrictions other provision of this Lease and to all rights of Landlord hereunder;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest Agreement shall be deemed extended by the number of days of delay occasioned by judicial restriction to expand or application or operation of law against any modify such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modified, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deed, the holder or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection with any Improvements, including but not limited to construction loans, long term loans and refinancing permitted by the terms of this Lease shall contain the written agreement of the Leasehold Mortgagee that Landlord shall be notified by the Leasehold Mortgagee within thirty (30) days of any default by Tenant on any such loan and shall be given the opportunity to correct the default and assume the loan(s) prior to initiation of foreclosure actions other than the filing of a notice of default pursuant to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed and the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms of this Lease to restore the Improvements following such damage or destructionobligations.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of the fair market value of the Improvements at the time the loan is entered into.
Appears in 2 contracts
Sources: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)