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 As of the date of this Agreement, ▇▇▇▇▇▇ has delivered to the Company a true and complete copy of the executed Debt Commitment Letter and the Debt Fee Letters, which Debt Fee Letters have been redacted for fees, pricing terms, “market flex” provisions (if any) and other terms that are customarily redacted (including any dates related thereto), none of which would reasonably be expected to reduce the aggregate principal amount of the Debt Financing to be funded on the Closing Date or impose additional conditions precedent to the funding of the Debt Financing on the Closing Date. The Debt Commitment Letter has not been amended or modified in any manner prior to the date of this Agreement. As of the date of 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 this Agreement, including the Offer and the Merger, that imposes conditions precedent to the funding of the Debt Financing on the Closing Date or would otherwise affect the availability of the Debt Financing on the Closing Date, in each case, other than the Debt Commitment Letter and the Debt Fee Letters or any customary engagement letters or non-disclosure agreements which do not impact the conditionality or amount of the Debt Financing and that, in the case of such customary engagement letters, copies of which (that may seek include customary redactions) have been delivered to obtain a loan the Parent as of the date hereof. Assuming satisfaction of the Offer Conditions and that the Debt Financing is funded on the Closing Date in accordance with the Debt Commitment Letter, as of the date of this Agreement, the aggregate proceeds of the Debt Financing (both before and after giving effect to the exercise of any or all “market flex” provisions (if any) related thereto), together with 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 of Parent, will be sufficient to finance (i) the Improvements payment of the aggregate Per Share Price, the Company PSU Consideration and Company RSA Consideration to refinance which holders of Company Common Stock, Company PSUs and Single-Trigger RSAs will be entitled at the Improvements from time Effective Time pursuant to time during this Agreement and (ii) the Term. For such purpose onlypayment of all fees and expenses, Tenant shall have in the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayedcase of each of clauses (i) and (ii), to assign the extent required to be paid by Parent or Merger Sub on the Closing Date in connection with consummation of the transactions contemplated by this Agreement, including the Offer, the Merger, repaying all or part of Tenant’s principal, interest and fees outstanding under this Lease, as security the Company Credit Agreement and the Redemption and/or Discharge (the minimum amount sufficient to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced finance such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelypayments, the “Trust DeedRequired Amount”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20) Business Days As 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 this Agreement, the commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect. As of the date of this Lease;
Agreement, the Debt Commitment Letter is in full force and effect and represent valid, binding and enforceable obligations (esubject to the Enforceability Limitations) The Trust Deed imposes of Parent and, to the Knowledge of Parent, each other party thereto to provide the financing contemplated thereby subject only to the satisfaction or waiver of the Financing Conditions. Parent has fully paid (or caused to be paid) any and all fees that are due and payable on or prior to the date of this Agreement in connection with the Debt Financing. Assuming performance by the Company and its Affiliates of their respective obligations under this Agreement, as of the date of this Agreement, no financial obligations event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the Landlordpart of Parent or, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect to the Landlord’s right to conveyKnowledge of Parent, mortgage, encumber or otherwise hypothecate in any way other party thereto under any term of the Landlord’s fee or leasehold title (respectively) or reversionary interest in Debt Commitment Letter. As 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 to all conditions, covenants and restrictions date of this Lease and Agreement, ▇▇▇▇▇▇ has no reason to all rights believe that it or any other party thereto will be unable to satisfy on a timely basis any term of Landlord hereunder;
the Debt Commitment Letter. Assuming satisfaction of the Offer Conditions, as of the date of this Agreement, Parent has no reason to believe that (i) The Landlord any of the Financing Conditions will accept performance under this Lease by any Leasehold Mortgagee as though not be satisfied or (ii) the same had been performed by Tenant;
(j) The time Debt Financing will not be made available to a Leasehold Mortgagee Parent on the Closing Date. Parent and Merger Sub expressly agree and acknowledge that their obligations hereunder, including ▇▇▇▇▇▇’s and Merger Sub’s obligations to initiate foreclosure proceedingsconsummate the Offer and the Merger, to proceed with foreclosure proceedingsare not subject to, or to obtain possession of the leasehold interest shall be deemed extended by the number of days of delay occasioned by judicial restriction conditioned on, Parent’s or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold MortgageeMerger Sub’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 consummation of any proceedings to foreclose the Trust Deed financing arrangements, Parent’s 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 Merger Sub’s obtaining of any default by Tenant on any such loan and shall be given financing or 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 availability, grant, provision or extension of any Trust Deed prior financing 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 Parent 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.
(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 (Herc Holdings Inc), Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (H&E Equipment Services, 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 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) Each of Parent, Bidco and each Merger Sub shall use reasonable best efforts, and shall cause their respective Subsidiaries to obtain a loan use reasonable best efforts, to finance the Improvements take or shall cause to be taken, all actions and to refinance do, or cause to be done, all things necessary, proper or advisable to maintain the Improvements from time commitments under and to time during consummate the Term. For Debt Financing and obtain the proceeds thereof (including for the avoidance of doubt, the Bridge Facility Agreement or any replacement financing (provided, that (i) the conditions to the availability of any such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which replacement financing shall not be unreasonably withheldmaterially less favorable to Parent than those of the Bridge Facility Agreement and (ii) the other terms of such replacement financing shall not be materially less favorable to Parent than those of the Bridge Facility Agreement in any manner that materially adversely affects the ability or likelihood of Parent, conditioned Bidco or delayedeither Merger Sub from timely consummating the transactions contemplated by this Agreement)) in an amount sufficient, together with other funds available to the Parent and its Subsidiaries, to assign all enable Parent or part Bidco to pay in cash the Required Financing Amount at the Closing.
(b) (i) From time to time, upon the written request of Tenantthe Company, Parent shall inform the Company in reasonable detail on the status of its efforts to arrange the Debt Financing and (ii) Parent shall give the Company prompt written notice of (A) any termination of the Bridge Facility Agreement (other than any termination in connection with a replacement financing thereof), (B) the receipt of any notice or other communication from any Financing Source with respect to such Financing Source’s interest failure or anticipated failure to fund its commitments under any definitive agreements relating to the Debt Financing (other than in connection with a replacement lender assuming the commitments of a defaulting lender pursuant to the documentation related to the applicable Debt Financing), (C) any material default or material breach by any party to the Debt Financing of which Parent, Bidco or either Merger Sub has become aware (other than in connection with a replacement lender assuming the commitments of a defaulting lender pursuant to the documentation related to the applicable Debt Financing) and (D) any condition precedent of the Debt Financing as to which Parent, Bidco or either Merger Sub believes will not be satisfied at Closing.
(c) Notwithstanding anything in this Agreement to the contrary, Parent, Bidco, and each Merger Sub acknowledge and agree that the receipt and availability of any funds or financing is not a condition to Closing under this Lease, as security Agreement nor is it a condition to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds Closing under this Agreement for Parent 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 14.2, 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 Debt Financing or 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 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 4 contracts
Sources: Merger Agreement (Astrazeneca PLC), Merger Agreement (Alexion Pharmaceuticals, Inc.), Merger Agreement (Alexion Pharmaceuticals, Inc.)
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 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) 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 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 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 (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 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 (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 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 (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 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 (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. 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) 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) 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 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 commercially reasonable best efforts to: (i) negotiate definitive agreements with respect to obtain a loan to finance the Improvements Debt Financing on the terms and to refinance conditions contemplated by 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 delayedFinancing Commitments or, to assign all or the extent the financing contemplated by the Financing Commitments is not available to Parent, on terms that are not materially less favorable, in the aggregate, to Parent and the Company (as determined in the reasonable judgment of Parent, and with such determination based in part of Tenantthe relevant closing conditions) than the terms of the Debt Financing Commitment and subject to Section 5.12(b); (ii) satisfy on a timely basis all conditions set forth in such Debt Financing Commitments applicable to Parent and Merger Sub that are within their control; (iii) obtain, at or prior to the Closing Date the financing necessary such that Parent and Merger Sub, in either case, will have at and after the Closing funds sufficient to pay all of the amounts payable under Article I of this Agreement or otherwise in connection with the Merger and related fees and expenses of the parties associated therewith; (iv) fully enforcing the Lender’s interest obligations (and the rights of Parent and Merger Sub) under this Lease, as security to any Institutional Lender the Debt Financing Commitment; and (a “Leasehold Mortgagee”v) which has advanced such funds to Tenant pursuant to a promissory note fully enforcing the Sponsors’ obligations (and a trust deed or mortgage (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (20rights of Parent and Merger Sub) Business Days of Tenant’s written request, which shall contain under the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1Equity Financing Commitment. 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 Commitments, Parent shall use its commercially reasonable best efforts to secure a loan permitted under this Section 14.2arrange to obtain alternative financing from alternative sources on terms not materially less favorable, then in the aggregate, to Parent (as determined in the reasonable judgment of Parent) as promptly as practicable following the occurrence of such event. Parent shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with give the Leasehold Mortgagee;Company prompt notice of any material breach by any party to the Financing Commitments, of which Parent becomes aware, or any termination of the Financing Commitments.
(b) The Landlord Company shall not use commercially reasonable efforts to cooperate, and to cause its Subsidiaries and Representatives to cooperate, with Parent and Representatives of Parent in connection with the Financing, including by: (i) furnishing Parent and its financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested in writing by Parent, including all financial statements and projections and other pertinent information required by the Debt Financing Commitment and requested in writing by Parent (other than information for which the Company is dependent on information to be provided by Parent to the Company in order to prepare such financial statements and projections, unless such information is provided to the Company by Parent or the Lender or any of their respective Representatives at least five (5) Business Days prior to the date required to sign be delivered by the Company) (all such information in this clause (i), the “Required Information”); (ii) participating in meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies; (iii) assisting with the preparation of materials for rating agency presentations, confidential information memoranda and similar documents required in connection with the Financing; (iv) executing and delivering any Trust Deed pledge and security documents, currency or the Noteinterest hedging arrangements, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent or otherwise become obligated thereunder;reasonably facilitating the pledging of collateral (provided that such documents will not take effect until the Effective Time); provided, however, nothing herein shall require such assistance to the extent it would unreasonably interfere with the business or operations of the Company or its Subsidiaries; provided, further, that notwithstanding the foregoing, no obligations of the Company, its Subsidiaries or their respective Affiliates or Representatives under any agreement, document or instrument executed or delivered by the Company, its Subsidiaries or their respective Affiliates or Representatives pursuant to the Company’s obligations under this Section 5.12(b) shall be effective until the Effective Time; provided, further, that nothing herein shall require such assistance to the extent it would require the Company to pay (or to agree to pay) any fees, reimburse any expenses, incur any liability or give any indemnities prior to the Effective Time for which it is not reimbursed or indemnified; provided, further, that if the Company in good faith reasonably believes it has delivered the Required Information at the time the Marketing would commence (assuming the Required Information had been delivered), it may deliver to Parent a written notice to that effect (stating when it believes it completed such delivery), in which case receipt of such Required Information shall be deemed to have been satisfied on the date of such notice for purposes of the commencement of the Marketing Period unless Parent in good faith reasonably believes the Company has not completed delivery of the Required Information and, within three (3) Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with reasonable specificity which Required Information the Company has not delivered).
(c) No Neither Parent nor Merger Sub shall amend, modify, alter, waive, replace or agree to amend, modify, alter, waive or replace (in any case whether by action or inaction), any term of the Financing Commitments if such lienamendment, charge modification, waiver or encumbrance replacement (x) reduces the aggregate amount of the Financing (including by increasing 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) beyond what is contemplated under the Debt Financing Commitment (other than as a result of the exercise of any lender flex provisions contained in any fee letter entered into by Parent or Merger Sub in connection with such Debt Financing Commitment (provided that no such exercise shall constitute result in a lien reduction of the aggregate committed amount of financing under the Debt Financing Commitment)) or encumbrance upon (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the Landlord’s fee title conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) delay or prevent the Closing Date, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (III) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Financing Letters or the definitive agreements with respect thereto, and 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 the Financing on the terms and conditions described in the Premises Financing Commitments (including any lender flex provisions contained in any fee letter entered into by Parent or their reversionary interest Merger Sub in connection with such Debt Financing Commitment), including using its reasonable best efforts to (i) maintain in effect the Financing Commitments, (ii) satisfy on a timely basis all conditions applicable to the Parent and Merger Sub to obtaining the Debt Financing at the Closing set forth therein that are within its control, (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Financing Commitment (other than changes to such terms and conditions as a result of the exercise of any lender flex provisions contained in any fee letter or other changes that, in each case, do not reduce the aggregate committed amount of financing under, or the conditionality of, the Debt Financing Commitment) and provide copies of such definitive agreements to the Company; and (iv) upon satisfaction of the conditions set forth in the Improvements;Financing Commitments, consummate the Financing at or prior to the Closing. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment (including any lender flex provisions contained in any fee letter entered into by Parent or Merger Sub in connection with such Debt Financing Commitment and other that changes to such terms and conditions that, in each case, do not reduce the aggregate committed amount of financing under, or the conditionality of, the Debt Financing Commitment), the Parent shall promptly notify the Company (and in any event within one (1) Business Day thereof) and shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms and conditions no less favorable to the Parent and Merger Sub and in an amount sufficient to consummate the transactions contemplated hereby promptly following the occurrence of such event.
(d) Any interest Parent and the Surviving Corporation shall take any and all actions reasonably necessary to ensure that any distributions by the Surviving Corporation to the Company Shareholders in the Premises which the Trust Deed establishes in a trusteeconnection with this Agreement, and any lien which it createsif any, shall expire on be made in compliance with the CCC and without any liability to the Indemnified Parties or before the date of expiration of this Lease;Company Shareholders under the CCC.
(e) The Trust Deed imposes no financial obligations on At the LandlordClosing, contingent Parent shall provide to Fenwick & West LLP, counsel to the Company, Federal Reserve Wire Network reference numbers reflecting the funding to Parent of amounts dispersed to Parent (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 one 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;
(lof Parent’s Subsidiaries) 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 (Sonicwall Inc), Merger Agreement (Sonicwall Inc)
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) Prior to the Closing, the Sellers shall use reasonable best efforts to, and cause the Transferred Subsidiaries and the other Indirect Subsidiaries and their respective directors, officers, employees, advisors and representatives to, provide to the Buyers, at the Buyers’ sole expense, all reasonable cooperation requested by the Buyers that is customary in connection with obtaining the Debt Financing, including, but not limited to, (i) furnishing to the Buyers and the Debt Financing Sources, as promptly as reasonably practicable, such customary financial and other information as the Buyers shall reasonably request in order 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 Debt Financing (a “Leasehold Mortgagee”ii) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage at least five (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided to Tenant within twenty (205) 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 Date, providing all documentation and other customary information about the Transferred Subsidiaries and the Indirect Subsidiaries as is reasonably requested by the Debt Financing Sources with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (20iii) Business Daysfacilitating the granting of liens and pledging collateral as may be reasonably requested by the Buyers, provided that no guarantee, security interest or pledge shall be executed, delivered or be effective until the occurrence of the Closing and subject to compliance with applicable laws (including laws on financial assistance), (iv) permitting the Debt Financing Sources to evaluate and appraise the Transferred Subsidiaries’ and the Indirect Subsidiaries’ current assets and liabilities, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral and/or security arrangements after the Closing, and (v) obtaining such payoff letters and collateral lien and/or security releases as are required by the Debt Financing Sources (and provided that drafts of such payoff letters and collateral and/or security releases are provided in accordance with Section 7.4(g)); provided, however, that notwithstanding anything in this Agreement to the contrary, none of the Sellers, the Transferred Subsidiaries or the Indirect Subsidiaries shall (A) be required to pay any commitment or other similar fee or consent fee (other than the Transferred Subsidiaries and Indirect Subsidiaries after Closing), (B) have prior to the Closing any liability or obligation under the Debt Commitment Letters, any loan agreement or certifications or any related document or any other agreement or document related to the Debt Financing, (C) be required to incur prior to the Closing any other liability in connection with the Debt Financing, (D) take any action that would (x) unreasonably interfere with its ongoing business operations or (y) conflict with or violate laws, or result in a contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any material contract to which it is a party, (E) be required to agree to provide any inducement or business to any of the Debt Financing Sources or (F) except only as will be executed, delivered and effective at the Closing (and subject to compliance with applicable laws (including laws on financial assistance), take any corporate action or execute any consent approving, or executing any document or agreement relating to, the Debt Financing. The Buyers shall indemnify and hold harmless Sellers, the Transferred Subsidiaries and the Indirect Subsidiaries for any and all losses, costs and expenses actually suffered or incurred by them in connection with the arrangement of the Buyer Financing or any action taken by them at the request of the Buyers pursuant to this Section 6.13.
(b) The Buyers shall use their reasonable best efforts to (i) satisfy on a timely basis all conditions to funding set forth in such Debt Commitment Letters and the conditions set forth for utilisation of the facilities described in the Debt Commitment Letters, (ii) obtain, at or prior to the Closing Date, the financing necessary such that the Buyers will have at and after the Closing funds sufficient to pay the Required Amount, and (iii) comply with the Buyers’ obligations with respect to the conditions to the receipt of such Debt Financing under the Debt Commitment Letters. The Buyers shall give the Sellers prompt notice of any material breach by any party to the Debt Commitment Letters, of which the Buyers becomes aware, or any termination of the Commitment Letters.
(c) The Buyers shall not amend, modify, alter, waive, replace or agree to amend, modify, alter, waive or replace (in any case whether by action or inaction), any term of the Commitment Letters or any facility documents entered into under or in connection with the Debt Commitment Letters (the “Facility Documents”), if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Buyer Financing (including by increasing the amount of fees to be deemed approvedpaid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount) beyond the amount necessary for the Buyers to sufficiently pay the Required Amount, or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Buyer Financing in a manner that would reasonably be expected to (I) delay or prevent the consummation of the transactions contemplated hereby when required pursuant to Section 2.2, (II) make the funding of the Buyer Financing (or satisfaction of the conditions to obtaining the Buyer Financing) less likely to occur or (III) adversely impact the ability of the Buyers to enforce their rights against other parties to the Commitment Letters or any other definitive agreements with respect thereto, and 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 the Buyer Financing on the terms and conditions described in the Commitment Letters and the Facility Documents, including using its reasonable best efforts to (i) maintain in effect the Commitment Letters and the Facility Documents, (ii) satisfy on a timely basis all conditions applicable to the Buyers to obtaining the Debt Financing at the Closing set forth therein that are within its control; and (iii) upon satisfaction of the conditions set forth in the Commitment Letters and the Facility Documents, consummate the Buyer Financing at or prior to the Closing. In the event Tenant assigns any portion of the Buyer Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letters and the Facility Documents, the Buyers shall promptly notify the Sellers of such unavailability and the reasons therefor (and in any event within one (1) Business Day thereof), and shall use their reasonable best efforts to arrange to obtain alternative financing as promptly as practicable from alternative sources on which do not contain any conditions to the receipt of such Buyer Financing which are materially less favorable, in the aggregate, to the Buyers and in an amount sufficient to consummate the transactions contemplated hereby promptly following the occurrence of such event (the “Alternative Financing”). The Buyers shall deliver to the Sellers copies of all agreements evidencing the Alternative Financing. The Buyers shall give the Sellers prompt written notice of (x) any material breach by any party to the Commitment Letters and the Facility Documents of which the Buyers becomes aware or any termination of the Commitment Letters and the Facility Documents, or (y) any material dispute or disagreement between or among the Buyers, on the one hand, and the Debt Financing Sources on the other hand, or, to the knowledge of the Buyers, among any of the Debt Financing Sources with respect to their obligations to fund the Required Amount. If at any time for any reason the Buyers believe in good faith that they will not be able to obtain all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2the Buyer Financing on the terms and conditions, 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 Commitment Letters and the Facility Documents or any other definitive agreements related thereto, the Buyers shall deliver prompt written notice to the Sellers. The Buyers shall keep the Sellers informed on a reasonably current basis in reasonable detail of the Improvements;
status of its efforts to obtain the Debt Financing and provide to the Sellers copies of all related documents. In no event shall the unavailability of any funds or financing (dincluding, for the avoidance of doubt, the Buyer Financing) 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 Buyers excuse 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 Buyers from performance 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 destructiontheir respective 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: Share Purchase Agreement, Share Purchase Agreement (Mallinckrodt PLC)
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 (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 (a) Without limiting Sections 6.3, 6.6 and 6.14, subject to obtain a loan applicable Law, the Company agrees to finance the Improvements (i) provide reasonable cooperation, and to refinance cause its Subsidiaries and their respective officers and employees to provide reasonable cooperation and (ii) use its commercially reasonable efforts to cause its independent auditors to provide reasonable cooperation, in connection with the Improvements arrangement of any financing to be consummated in order to fund the Merger Consideration to be paid pursuant to this Agreement (each, a “Financing”), including without limitation, reasonable participation (at Parent’s sole cost and expense) in meetings and road shows; making available information relating to the Financing reasonably requested by Parent; and reasonable assistance (at Parent’s sole cost and expense) in the preparation of offering memoranda, private placement memoranda and similar documents of Parent. Parent will use reasonable best efforts to minimize any disruption to the businesses of the Company and its Subsidiaries which may result from time to time during the Term. For such purpose onlyrequests for access, 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 data and information 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”Section 6.13(a). Landlord’s written approval or denial Notwithstanding the foregoing, in no event shall the Company be provided required to Tenant provide any cooperation with any Financing that involves the registration of any securities of the Company under the Securities Act.
(b) Parent agrees to use its best efforts to arrange the Financing on the terms and conditions no less advantageous than those described in the Commitment Letter, including using reasonable best efforts to (i) negotiate definitive agreements with respect thereto on terms and conditions contained therein and (ii) to satisfy all conditions applicable to Parent and Merger Sub in such definitive agreements that are 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 approvedits control. 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 Financing becomes unavailable on 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 terms and conditions contemplated in the Premises or their reversionary interest in Commitment Letter, Parent shall use its reasonable best efforts to arrange to obtain any such portion from alternative sources as promptly as practicable following 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 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 commencedevent. 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 Parent shall give Landlord written the Company prompt notice of any Trust Deed prior material breach by any party of the Commitment Letter or any termination of the Commitment Letter. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing. For the avoidance of doubt, if the Financing (or any alternative financing) has not been obtained, Parent and Merger Sub shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and subject only 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 satisfaction or destruction waiver of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms conditions set forth in Sections 7.1 and 7.2 of this Lease Agreement and to restore the Improvements following such damage or destructionParent’s rights under applicable subsections of Section 8.1.
(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 (Andrx Corp /De/), Merger Agreement (Watson Pharmaceuticals Inc)
Financing. Tenant may seek Each of Parent and Merger Sub 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 close concurrently with the Improvements from time Closing, debt financing on terms and conditions described in the Debt Commitment Letters and/or any Alternative Financing (as defined below) (including obtaining rating agency approvals, maintaining in effect the Debt Commitment Letters, satisfying on a timely basis all conditions applicable to time during Parent and Merger Sub to obtaining the Termfinancing contemplated by the Debt Commitment Letters, negotiating and entering into definitive agreements with respect to the Debt Commitment Letters on terms and conditions contained therein or with respect to any Alternative Financing, satisfying all conditions applicable to Parent and Merger Sub in such definitive agreements that are within their respective control and, if necessary, borrowing pursuant to the Debt Commitment Letters in the event any “flex” provisions are exercised). For such purpose onlyParent shall keep the Company Board informed on a reasonably current basis in reasonable detail of the status of its efforts to comply with the terms of, Tenant and satisfy the conditions contemplated by, the Debt Commitment Letters in accordance with this Section 6.12 and shall have not, and shall not permit Merger Sub to, agree or permit any amendment, supplement or other modification to be made to, or any waiver of any provision or remedy under, the right, with Landlord’s Debt Commitment Letters without obtaining the prior written approvalconsent of the Company Board if such amendment, which supplement or other modification could reasonably be expected to impair, delay or prevent consummation of the Debt Financing. Parent shall give the Company Board prompt notice of any material breach by any party to the Debt Commitment Letters, any termination of any of the Debt Commitment Letters or any other circumstance, event or condition that would reasonably be likely to prevent, delay or impede the consummation of the financing contemplated by the Debt Commitment Letters, to the extent it becomes aware of such breach, termination, circumstance, event or condition. Parent shall not, and shall not be unreasonably withheldpermit any of its Affiliates to, 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;
the Company, take or fail to take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, contract or debt or equity financing, that could reasonably be expected to materially breach or make materially untrue any representation or warranty contained in the Debt Commitment Letters or otherwise impair, delay or prevent consummation of the Debt Financing (m) The Trust Deed shall provide thator, prior to the institution if applicable, of any proceedings to foreclose Alternative Financing). In the Trust Deed event that all or of negotiations to accept an assignment in lieu any portion of the foreclosure of financing contemplated by the Trust DeedDebt Commitment Letters becomes unavailable on the terms and conditions set forth in the Debt Commitment Letters, Parent shall use its reasonable best efforts to arrange, or if Parent is able to arrange debt financing in amounts sufficient to fund the holder or beneficiary thereof shall notify Landlord transactions contemplated hereby on terms and conditions more favorable to Parent than those contained in writing that such proceedings or negotiations are to be commencedthe Debt Commitment Letters, and Landlord shall have Parent may arrange, in each case as promptly as practicable following the right, but not the obligation, within sixty (60) days after receiving occurrence of such notice to purchase event and after giving the Trust Deed and the indebtedness which it secures at a purchase price equal to the full amount then owing under said Trust DeedCompany prior written notice, 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 alternative financing 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 alternative sources in an amount which exceeds seventy-five percent sufficient to consummate the transactions contemplated by this Agreement on terms that are no less beneficial to Parent or Merger Sub (75%including with respect to conditionality) and on terms that would not reasonably be expected to prevent, delay or impede the consummation of any remaining financing contemplated by the Debt Commitment Letters or the transactions contemplated by this Agreement (the “Alternative Financing”). For the avoidance of doubt, if the financing provided for by the Debt Commitment Letters has not been or cannot be obtained, Parent and Merger Sub shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and subject only to the satisfaction or waiver of the fair market value conditions set forth in Sections 7.1 and 7.2 of this Agreement (other than those conditions that by their nature will not be satisfied until the Improvements at the time the loan is entered intoClosing) and to Parent’s rights under Section 8.1, regardless of whether Parent and Merger Sub have complied with all of their other obligations under this Agreement (including their obligations under this Section 6.12).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (LKQ Corp), Merger Agreement (Keystone Automotive Industries Inc)
Financing. Tenant may seek (a) The Debtor shall, and shall cause its Subsidiaries to, use reasonable best efforts to obtain a loan provide and direct its and their respective Representatives to finance use their respective reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Improvements arrangement, syndication and consummation of any debt financing by Parent or its Subsidiaries and the Debtor or any of its Subsidiaries, any equity financing of Parent or any minority investment in the Debtor or any of its Subsidiaries (not to refinance exceed ten percent (10%) of the Improvements fully-diluted equity of the Debtor or such Subsidiary) including (i) the refinancing of the indebtedness under the Centerbridge Facility, whether at the Debtor, Parent or any of their Subsidiaries (such financing, the “Manorcare Financing”), (ii) the refinancing of the indebtedness under the First Lien Credit and Guaranty Agreement, dated as of October 31, 2016, by and among QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, QCP SNF East REIT, LLC, QCP AL REIT, LLC, QCP Holdco REIT, LLC, Parent, certain Subsidiaries of Parent from time to time during party to the Termcredit agreement as guarantors, the lenders party thereto and Barclays Bank PLC, as Administrative Agent and Swing Line Lender, and the L/C Issuers at Parent or any of its Subsidiaries and (iii) the refinancing of the $750 million senior secured notes due 2023 issued pursuant to that certain Indenture, dated as of October 17, 2016, among QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, QCP SNF East REIT, LLC and QCP AL REIT, LLC, as issuers, and Wilmington Trust, National Association, as trustee and notes collateral agent (such financing, together with the Manorcare Financing, the “Financing”). For Such cooperation shall include (i) furnishing Parent and its Debt Financing Sources with the Audited Financial Statements and with audited financial statements for the Debtor and its Subsidiaries for each subsequent fiscal year within fifty (50) days after the end of such purpose onlyfiscal year, Tenant shall have and quarterly and interim unaudited financial statements for the rightDebtor and its Subsidiaries for the fiscal quarters and interim periods ended March 31, 2018, June 30, 2018 and September 30, 2018 and for each subsequent fiscal quarter within thirty-five (35) days after the end of such fiscal quarter, in each case, with Landlord’s comparative financial information for the equivalent period of the prior written approvalyear; (ii) using reasonable best efforts to furnish Parent and its Debt Financing Sources with information, which shall not be unreasonably withheldaudit reports, conditioned historical business and other financial data and any supplements thereto regarding the Debtor and its Subsidiaries customarily included in information memoranda and other syndication materials for revolving, term loan credit facilities, bond offering documents and equity offering documents, including assisting in preparing pro forma financial information for the Debtor and its Subsidiaries; (iii) to the extent reasonably requested by Parent, using reasonable best efforts to prepare carve-out audited and unaudited financial statements for the time period required or delayed, to assign all or part of Tenant’s interest under this Lease, as security desirable to any Institutional Lender Debt Financing Source; (iv) using reasonable best efforts to cause members of management and other senior officers to participate in a “Leasehold Mortgagee”reasonable number of meetings (including one-on-one meetings or conference calls), lender presentations, due diligence sessions and sessions with rating agencies, prospective lenders and investors and other syndication and marketing activities; (v) which has advanced such funds to Tenant pursuant to a promissory note reasonably assisting Parent and a trust deed or mortgage its Debt Financing Sources in the preparation of any syndication and offering documents and materials, including information memoranda, lender presentations, offering memoranda, registration statements, prospectuses and other marketing documents (collectively, the “Trust DeedMarketing Documentation”). Landlord’s written approval or denial shall ) and provide and execute a customary authorization letter with respect thereto; (vi) reasonably cooperating in marketing efforts of Parent; (vii) reasonably assisting in the negotiation and preparation of any credit agreements, indentures, underwriting agreements, purchase agreements, pledge and security documents, mortgages, guarantees, hedging agreements and other definitive documents, a certificate of the chief financial officer of the Debtor with respect to solvency matters in a form acceptable to Parent and any other certificates, letters and documents (including any schedules and exhibits in connection with the foregoing) as may be provided reasonably requested by Parent; (viii) reasonably assisting in the obtaining of (A) audit reports, authorization letters, comfort letters and consents of accountants and auditors with respect to Tenant within twenty financial statements for the Debtor and its Subsidiaries for inclusion in any Marketing Documentation and (20B) Business Days payoff letters, instruments of Tenant’s written request, which shall contain the discharge and Lien terminations; (ix) providing information regarding the assignee’s financial strengthDebtor and its Subsidiaries required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, reputation and experience delineated in Section 12.1. If Landlord does not respond including, without limitation, the USA Patriot Act of 2001, to the request within twenty extent requested by its Debt Financing Sources at least eight (208) business days prior to the Closing; (x) Business Daysreasonably assisting Parent in obtaining corporate, facility and debt security ratings from rating agencies; (xi) reasonably cooperating with Parent’s legal counsel (including providing customary back-up certificates) in connection with any legal opinions that such legal counsel may be required to deliver in connection with the request shall Financing; (xii) taking such reasonable actions as may be deemed approved. In reasonably requested by Parent necessary to permit its Debt Financing Sources to evaluate the event Tenant assigns all Debtor’s assets and cash management policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to cooperate with other due diligence conducted by its Debt Financing Sources; (xiii) using reasonable best efforts to obtain customary evidence of authority, customary officer’s certificates, good standing certificates (to the extent applicable) in the respective jurisdictions of organization of the Debtor and its Subsidiaries, customary lien searches with respect to the Debtor and its Subsidiaries and insurance certificates; (xiv) using reasonable best efforts to facilitate the granting of a security interest (or any portion of Tenant’s Interest perfection thereof) in collateral by the Debtor and its Subsidiaries to secure a loan permitted under this Section 14.2the Financing at Closing; and (xv) if applicable, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement reasonably cooperating with Parent in connection with the Leasehold Mortgagee;payoff of the Centerbridge Facility at Closing.
(b) The Landlord shall Debtor hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing; provided that such logos are used solely in a manner that is not be required to sign any Trust Deed intended to, nor reasonably likely to, harm or disparage the Note, Debtor or otherwise become obligated thereunder;its Subsidiaries.
(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 For purposes of this Lease;
(e) The Trust Deed imposes no financial obligations on Agreement, “Debt Financing Sources” means the Landlord, contingent or otherwise;
(f) The Trust Deed shall neither subordinate nor affect the Landlord’s right to convey, mortgage, encumber Persons that will provide 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 enter into agreements in connection with any Improvementsthe Financing, including but not limited to construction loanstogether with, long term loans in each case, their Affiliates 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 destructionRepresentatives.
(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: Plan Sponsor Agreement, Plan Sponsor Agreement (Quality Care Properties, Inc.)
Financing. Tenant may seek (a) Each party shall use its reasonable best efforts to arrange and obtain a loan debt financing as promptly as reasonably necessary for the proceeds thereof to finance be available on the Improvements and Closing Date in the amounts set forth in the term sheets contained in Section 5.21 of the Parent Disclosure Schedule hereto on terms that are substantially consistent with or not substantially less favorable to refinance the Improvements from time parties hereto, in each party’s good faith commercial judgment, than the terms set forth in the term sheets contained in Section 5.21 of the Parent Disclosure Schedule together with any other terms reasonably acceptable to time during the Term. For such purpose only, Tenant shall have parties hereto (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 MortgageeTerm Sheet Financing”) which has advanced or, if the Term Sheet Financing is not available or the parties hereto agree to pursue other debt financing, in such funds amounts and on such other terms and conditions as are acceptable to Tenant pursuant to a promissory note and a trust deed or mortgage all parties (collectivelyin each party’s sole discretion) (any financing described in this sentence, the “Trust DeedAcceptable Financing”). 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 Notwithstanding anything to the request within twenty (20) Business Dayscontrary contained herein, the request nothing in this Agreement shall be deemed approved. In the event Tenant assigns all require any party to arrange 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;obtain debt financing that is not Acceptable Financing.
(b) The Landlord shall not be required In furtherance of the foregoing covenant, if Acceptable Financing is available to sign any Trust Deed the parties hereto, each party hereto hereby agrees to use its reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to such Acceptable Financing, and to offer customary fees, discounts and other incentives to potential financing sources, (ii) satisfy on a timely basis all conditions applicable to such Acceptable Financing in such definitive agreements, and (iii) use reasonable best efforts to consummate the Acceptable Financing at or prior to the Note, or otherwise become obligated thereunder;Closing.
(c) No such lienWith respect to any Acceptable Financing proposed to be entered into by any party hereto, 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 trusteeeach party shall, and any lien which it createsshall cause each of its Subsidiaries 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 use 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 under this Lease by any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to participate in 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 reasonable number of days meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assist in the preparation of delay occasioned by judicial restriction or application or operation of law against (A) 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 Leaseoffering documents, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease shall not be materially modifiedprivate placement memoranda, 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 thatbank information memoranda, 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, prospectuses 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 documents required in connection with such Acceptable Financing (and to provide any Improvementsfinancial and other information customarily included in any such document) and (B) materials for rating agency presentations, (iii) obtain customary accountants’ comfort letters including but not limited “negative assurance” comfort and consents of accountants for use of their reports in any materials relating to construction loanssuch Acceptable Financing, long term loans legal opinions, appraisals, surveys, title insurance and refinancing permitted by the terms of this Lease shall contain the written agreement other customary documentation and items relating to such Acceptable Financing, (iv) execute and deliver, as of the Leasehold Mortgagee that Landlord shall Closing, any pledge and security documents, other definitive financing documents, or other certificates or documents, as may be notified by the Leasehold Mortgagee within thirty reasonably necessary to facilitate such Acceptable Financing, and (30v) 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 take all corporate actions, subject to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior Closing, reasonably necessary or customary to permit the execution and/or recording of same by Tenant, and shall accompany such notice with a true copy consummation of such Trust Deed Acceptable Financing and to permit the Note secured thereby; and
(o) All insurance proceeds arising from damage or destruction of the Improvements shall be available for restoration thereof to be made available on the extent Tenant is obligated under Closing Date to consummate the terms of transactions contemplated by 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 (Mirant Corp), Merger Agreement (Rri Energy 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 Parent and Merger Sub shall use their 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 obtain the Improvements from time proceeds of the Financing, including using reasonable best efforts to time during the Term. For such purpose only, Tenant shall have the right, (i) 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 Debt Financing Commitments negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Financing Commitments and (ii) satisfy on a timely basis all conditions within twenty (20) Business Daysthe control of Parent or Merger Sub, the request shall be deemed approvedand otherwise comply with all terms, applicable to Parent and Merger Sub in such definitive agreements. In the event Tenant assigns all or any portion of Tenantthe Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments and such portion is reasonably required to consummate the transactions contemplated by this Agreement, Parent and Merger Sub shall promptly notify the Company and shall use their reasonable best efforts to arrange to obtain any such portion from alternative sources upon terms and conditions no less favorable to Parent and Merger Sub (in the reasonable judgment of Parent) than those contained in the applicable Financing Commitments as promptly as practicable following the occurrence of such event. Parent shall 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. Parent shall give the Company prompt notice of any material breach (of which Parent becomes aware) by any party to the Financing Commitments or any termination of the Financing Commitments. Each of Parent and Merger Sub shall refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the conditions contained in the Financing Commitments or in any definitive agreement related to the Financing. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing. Parent and Merger Sub may 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 Financing Commitments or the definitive agreements relating to the Financing and may obtain financing in substitution of all or a portion of the Financing, so long as they consult with the Company and promptly provide the Company with such information it may reasonably request regarding any alternative financing arrangements or plans. For the avoidance of doubt, if the Financing (or any alternative) has not been obtained by the Outside Termination Date, Parent and Merger Sub shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and subject only to the satisfaction or waiver of the conditions set forth in Sections 6.1 and 6.2 of this Agreement and to Parent’s Interest to secure a loan permitted rights under Section 7.1, regardless of whether Parent and Merger Sub have complied with all of their obligations under this Agreement (including their obligations under this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;5.11).
(b) The Landlord Company shall and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its respective Representatives to, provide to Parent and Merger Sub all reasonable cooperation reasonably requested by Parent in connection with the Financing (or any potential alternative financing) and to assist Parent in causing the conditions to the Financing Commitments to be satisfied, including (i) furnishing Parent and Merger Sub and their Financing sources (as promptly as practicable) the unaudited consolidated balance sheet of the Company and its Subsidiaries and the related statements of income, change in equity and cash flows as of the end of the most recent quarterly period prior to the execution of this Agreement and any quarterly period ending after the execution of this Agreement, all Company information, financial statements and financial data, and reports and other information regarding the Company and its Subsidiaries, of the type required in registration statements on Form S-3 by Regulation S-X and Regulation S-K under the Securities Act and of a type and form customarily included in registered public offerings of equity under the Securities Act or otherwise necessary to receive from the Company’s independent accountants customary “comfort” (including negative assurance comfort) with respect to the financial information to be included in such registration statement, audited financial statements as of December 31, 2010 and 2011, and for each of the fiscal years in the three-year period ended December 31, 2011 and the other financial data and financial information of the Company and its Subsidiaries that are required under Paragraph (v) of Annex II to the Debt Financing Commitment, and customary pro forma financial statements and information (information required to be delivered pursuant to this clause (i) being referred to as, the “Required Financial Information”), (ii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers, underwriters or agents for, and prospective lenders and purchasers of, the Financing (or any potential alternative financing) and including senior management and Representatives, with appropriate seniority and expertise, of the Company and its Subsidiaries), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing (or any potential alternative financing), (iii) assisting with the preparation of customary materials for rating agency presentations, bank information memoranda, offering documents, prospectuses, registration statements and similar documents required in connection with the Financing (or any potential alternative financing) (including requesting any consents of accountants for use of their reports in any materials relating to the Financing and the delivery of one or more customary representation letters), (iv) using reasonable best efforts to obtain customary accountants’ comfort letters and legal opinions as reasonably requested by Parent and facilitating the pledging of collateral in connection with the Financing, including executing and delivering any customary pledge and security documents (including security documents to be filed with the United States Copyright Office and the United States Patent and Trademark Office to register copyrights, patents and trademarks, as applicable, of the Company and its Subsidiaries to the extent required in connection with the Financing (or any potential alternative financing)), currency or interest hedging arrangements or other definitive financing documents or other certificates, legal opinions, surveys, title insurance and documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters as of the Closing, on a pro forma basis), (v) causing the taking of corporate actions (subject to the occurrence of the Closing) by the Company and its Subsidiaries reasonably necessary to permit the completion of the Financing (or any potential alternative financing) (provided that nothing herein shall require the Company Board of Directors to approve the Financing), (vi) facilitating the execution and delivery at the Closing of definitive documents related to the Financing on the terms contemplated by the Debt Financing Commitments, (vii) cooperating with consultants or others engaged to undertake field examinations and appraisals, including furnishing information to such persons in respect of accounts receivable, inventory, equipment, property and other applicable assets and liabilities, (viii) providing to the Financing sources (or sources of any potential alternative financing) all documentation and other information reasonably requested by such Financing sources that such Financing sources reasonably determine is required by regulatory authorities with respect to the Company under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, (ix) assisting Parent in connection with its amendment of any of the Company’s or its Subsidiaries’ hedging, swap or derivative arrangements on terms satisfactory to Parent, (x) cooperating in procuring, prior to the date that is twenty (20) consecutive Business Days prior to the Closing Date, corporate and facilities ratings for the Debt Financing and (xi) providing authorization letters to 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 or securities; 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. None of the Company or any of its Subsidiaries shall be required to sign take any Trust Deed action that would subject it to actual or potential liability or to pay any commitment or other similar fee or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing, prior to the Effective Time, unless such action is contingent upon the Closing. The Company hereby consents to the reasonable use of the Company’s and its Subsidiaries’ trademarks, service marks and logos in connection with the Financing (or any potential alternative financing); provided that such trademarks, service marks and logos are used in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the Notereputation or goodwill of the Company or any of its Subsidiaries. If the Closing does not occur, Parent shall indemnify and hold harmless the Company and its Subsidiaries and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or otherwise become obligated thereunder;incurred by it in connection with the arrangement of the Financing (including actions taken at the request of Parent in accordance with this Section 5.11(b)) and any information utilized in connection therewith (other than historical information relating to the Company or its Subsidiaries or other information furnished by or on behalf of the Company or its Subsidiaries), except in the event such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties arose out of or result from the gross negligence, fraud or willful misconduct of the Company, any of its Subsidiaries or any of their respective Representatives. Parent shall from time to time, promptly upon request by the Company, reimburse the Company for all documented and reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with this Section 5.11(b).
(c) No such lienIn the event that the Debt Financing Commitment (or any related definitive agreements) or the Equity Financing Commitment are amended, 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 trusteereplaced, 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 supplemented or otherwise hypothecate modified, including as a result of obtaining alternative financing in accordance with Section 5.11(a), or if Parent substitutes other debt or equity financing for all or a portion of the Financing, each of Parent, Merger Sub and the Company shall comply with its covenants in Sections 5.11(a) and 5.11(b) with respect to the Debt Financing Commitment (or any way the Landlord’s fee or leasehold title (respectivelyrelated definitive agreements) or reversionary interest in the Improvements Equity Financing Commitment, as applicable, as so amended, replaced, supplemented or the Premises;
(g) Except as otherwise provided herein, no Leasehold Mortgagee modified and with respect to such other debt 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 equity financing 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 extent that Parent and the Company would have been performed by Tenant;
(j) The time available obligated to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed comply 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 respect 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 (Railamerica Inc /De), Merger Agreement (Genesee & Wyoming Inc)
Financing. Tenant may seek 7.4.1 From the date hereof until the earlier of the Completion Date or the termination of this Agreement in accordance with its terms, subject to the terms and limitations hereof, the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to cooperate in connection with the arrangement of any debt or equity financing that the Buyer or any of its Affiliates elects to obtain a loan to finance for 41 / 107 the Improvements purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith (including the replacement, repayment or refinancing of any indebtedness of the Company, any of its Subsidiaries, the Buyer or any of its Affiliates) (the "Financing"), in each case, as may be reasonably requested by the Buyer; provided, that such requested cooperation does not unreasonably interfere with the business or ongoing operations of the Company and to refinance the Improvements from time to time during the Term. For its Subsidiaries and such purpose only, Tenant shall have the right, with Landlord’s prior written approval, which cooperation shall not be unreasonably withheldrequire the Company or its Subsidiaries to have its financial statements reviewed or audited other than in accordance with past practice. Such cooperation by the Company and its Subsidiaries shall include, conditioned or delayed, to assign all or part at the reasonable request 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 applyBuyer:
(a) Landlord will enter reasonably promptly following request by the Buyer, furnishing such financial statements and other financial data and other information relating to the Company and its Subsidiaries and requested by the Buyer or its Representatives as may be reasonably necessary or advisable to consummate the Financing, including financial statements, financial data, projections, audit reports and other practically available information constituting consolidated audited financial statements relating to the Company for the most recent fiscal year ended at least ninety (90) days prior to the Settlement Date and unaudited consolidated financial statements relating to the Company for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements and at least fifty (50) days prior to the Settlement Date (and the corresponding periods of the prior fiscal year) and financial information and data necessary for Buyer or any of its Affiliates to prepare customary pro forma financial information provided that such materials shall not include, and the Company and its Subsidiaries shall not be responsible for, the preparation of projections, risk factors and forward-looking statements relating to all or any component of the Financing and pro-forma financial information, including pro-forma cost savings, synergies, capitalization, or other pro-forma adjustments desired to be incorporated into a Lender Recognition Agreement with the Leasehold Mortgageeany pro-forma financial information;
(b) The Landlord shall not be required using reasonable best efforts to sign cause its independent accountants to cooperate with any Trust Deed or Financing sources consistent with such independent accountants’ customary practice and obtain customary accountants’ "comfort letters" (including customary "negative assurances") and customary consents to the Note, or otherwise become obligated thereunderinclusion of audit reports in connection with the Financing;
(c) No such lien, charge providing information related to the Company and its Subsidiaries reasonably necessary to assist the Buyer or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title any of its Affiliates in the Premises preparation of one or their reversionary interest in more customary confidential information 42 / 107 memoranda, offering memoranda and other marketing and syndication materials reasonably requested by the ImprovementsBuyer or any of its Affiliates;
(d) Any interest in providing the Premises which reasonable use by the Trust Deed establishes Buyer and its Affiliates of the Company's and its Subsidiaries' logos for syndication and underwriting, as applicable, of the Financing (subject to advance review of and consultation with respect to such use); provided, that such logos are used solely in a trusteemanner that is reasonable and customary for such purposes and that is not 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 or any of their respective products, and any lien which it createsservices, shall expire on offerings or before the date of expiration of this Leaseintellectual property rights;
(e) The Trust Deed imposes no financial obligations on participating (and causing senior management and representatives, with appropriate seniority and expertise, to participate), with appropriate advance notice, in a reasonable number of meetings and presentations with prospective Financing sources and in due diligence sessions reasonably requested by the Landlord, contingent or otherwiseFinancing sources;
(f) The Trust Deed shall neither subordinate nor affect providing information reasonably necessary to assist the Landlord’s right Buyer or any of its Affiliates in its preparation of customary material 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 PremisesCompany and its Subsidiaries for rating agency presentations;
(g) Except providing, at least three (3) Business Days prior to the Settlement all documentation and other information about the Company and its Subsidiaries as otherwise provided hereinis required by applicable "know your customer" and anti-money laundering rules and regulations, no Leasehold Mortgagee or anyone claiming byincluding the USA PATRIOT Act, through or under such Leasehold Mortgagee shall, to the extent reasonably requested by virtue of such claim, acquire any greater rights than Tenant then had under this LeaseFinancing source at least ten (10) Business Days prior to the anticipated Settlement Date;
(h) The Trust Deed shall be subject using reasonable best efforts to all conditionscooperate with the Buyer and any Debt Financing Sources to ensure that, covenants to the extent practicable and restrictions of this Lease appropriate, any syndication efforts in connection with the Debt Financing benefit from the Company's and to all rights of Landlord hereunderits Subsidiaries' existing financing relationships;
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though promptly supplementing the same had been performed by Tenant;
written information (jother than projections and other forward-looking materials and information of a general economic or industry specific nature) 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 provided by the number of days of delay occasioned by judicial restriction Company 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 its Subsidiaries to the extent Tenant is obligated under the terms such information contains any material misstatement of this Lease fact or omits to restore the Improvements following state any material fact necessary to make such damage or destruction.
(p) No loan may be information, taken as a whole, not misleading 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.any material respect promptly after gaining knowledge thereof; and
Appears in 2 contracts
Sources: Business Combination Agreement (Thermo Fisher Scientific Inc.), Business Combination Agreement (Thermo Fisher Scientific 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 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 (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 Parent shall use its reasonable best efforts to obtain a loan the Financing on the terms and conditions described in the Financing Commitments or terms more favorable to finance Parent, including using its reasonable best efforts (i) to maintain in effect the Improvements Financing Commitments and to refinance negotiate definitive agreements with respect thereto on the Improvements terms and conditions contained in the Financing Commitments, (ii) to satisfy all conditions applicable to Parent in such definitive agreements and consummate the Financing at or prior to the Closing, (iii) to comply with its obligations under the Financing Commitments and (iv) to enforce its rights under the Financing Commitments. 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 Financing and provide to the Company copies of all documents related to the Financing (other than any ancillary documents subject to confidentiality agreements). In connection with its obligations under this Section 5.10, Parent shall be permitted, but not obligated, to amend, modify or replace the Debt Commitment Letters with new Financing Commitments, including through co-investment by or financing from time to time during one or more other additional parties (the Term. For such purpose only“New Financing Commitments”), Tenant shall have the right, with Landlord’s prior written approval, which provided that Parent shall not permit any replacement of, or amendment or modification to be unreasonably withheldmade 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”Debt Commitment Letter if such replacement (including through co-investment by or financing from one or more other additional parties). Landlord’s written approval , amendment, modification, waiver or denial shall be provided remedy reduces the aggregate amount of the Financing below that amount required to Tenant within twenty (20) Business Days of Tenant’s written requestconsummate the Merger and the other transactions contemplated hereby, which shall contain adversely amends or expands 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 within twenty (20) Business Daysdrawdown of the Financing in any respect that would make such conditions less likely to be satisfied or that would expand the possible circumstances under which such conditions would not be satisfied, that can reasonably be expected to delay the request Closing, or is adverse to the interests of the Company in any other material respect; and provided, further, that nothing in this Section 5.10 shall be deemed approvedto excuse, waive compliance with or modify any of the obligations set forth in the Confidentiality Agreement. In the event Tenant assigns all that Parent becomes aware of any event or circumstance that makes procurement of any portion of Tenant’s Interest the Financing unlikely to secure a loan permitted under occur in the manner or from the sources contemplated in the Financing Commitments, Parent shall notify the Company and shall use its reasonable best efforts to arrange as promptly as practicable, but in no event later than the last day of the Marketing Period, any such portion from alternative sources (including through co-investment by one or more other additional parties) on terms and conditions no less favorable to Parent or Merger Sub and no more adverse to the ability of Parent to consummate the transactions contemplated by this Section 14.2Agreement. The Company shall provide, then the following and shall apply:
(a) Landlord will enter into a Lender Recognition Agreement use reasonable best efforts to cause its Representatives, including legal and accounting, to provide, all cooperation reasonably requested by Parent in connection with the Leasehold Mortgagee;
Financing and the other transactions contemplated by this Agreement (bprovided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including (i) The Landlord providing reasonably required information relating to the Company and its Subsidiaries to the parties providing the Financing, which shall not include all financial statements and financial data for the Company and its Subsidiaries (A) of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in private placements under Rule 144A of the Securities Act to consummate any offering of senior or senior subordinated notes of the Company (or any direct or indirect parent thereof), including replacements thereof prior to any such information going “stale” or otherwise being unusable under applicable Law for such purpose and (B) all financial statements and information reasonably necessary for the satisfaction of the conditions set forth in the Debt Commitment Letter (the “Required Financial Information”), (ii) participating in a reasonable number of meetings, drafting sessions and due diligence sessions in connection with the Financing, (iii) assisting 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 efforts for any of the Debt Financing, including providing assistance in the preparation for, and participating in, reasonable meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies, (v) executing and delivering (or using reasonable best efforts to obtain from advisors), and causing its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from advisors), customary certificates (including a certificate of the chief financial officer of the Company with respect to solvency matters), accounting comfort letters, legal opinions, surveys, title insurance 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 reasonably facilitating the pledge of collateral and providing of guarantees contemplated by the Debt Commitment Letter, and (vi) delivering timely notice to its noteholders of the Company’s intent to redeem its outstanding 9-1/8% Senior Subordinated Notes due 2011 in connection with the Financing; provided, however, that no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the representation letter 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 that is not simultaneously reimbursed or incur any other liability in connection with 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, Financing prior to the institution Effective Time. Following the termination of any proceedings this agreement in accordance with its terms (other than pursuant 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 (60Section 7.1(b)(i) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal time when the Company is not eligible to terminate this Agreement pursuant to such section or pursuant to Section 7.1(d)) Parent shall promptly, upon request by the full amount then owing under said Trust DeedCompany, including accrued interest, reimburse the Company for all reasonable attorneys’ fee for and documented out-of-pocket costs incurred by the holder Company or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 5.10, and Parent shall further indemnify and hold harmless the Company, its Subsidiaries and their respective representatives from and against any Improvementsand all losses, including but not limited to construction loansdamages, long term loans claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing and refinancing permitted any information used in connection therewith (other than information provided in writing 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 TenantCompany or its Subsidiaries), 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 except to the extent Tenant is obligated under that such losses, damages, claims, costs or expenses, directly or indirectly, resulted from 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%) willful misconduct of the fair market value of the Improvements at the time the loan is entered intoCompany.
Appears in 2 contracts
Sources: Merger Agreement (Leever Daniel H), Merger Agreement (Court Square Capital Partners II LP)
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 (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) 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 (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) 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) Each of Parent and Merger Sub shall use (and cause their Affiliates to use) its reasonable best efforts to obtain the Financing on the terms and conditions described in the Financing Commitments as promptly as practicable, including using its reasonable best efforts (i) to negotiate and finalize definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments, (ii) to satisfy on a loan timely basis all conditions applicable to finance Parent and Merger Sub set forth in such definitive agreements that are within either of their control or influence and (iii) to comply with its obligations under the Improvements Financing Commitments and consummate the Financing no later than the Closing (subject to refinance the Improvements amendment and replacement rights described herein). 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. Each of Parent, Merger Sub and the Company shall refrain (and shall use their reasonable best efforts to cause their Affiliates to refrain) from time knowingly taking, directly or indirectly, any action that would reasonably be expected to time during result in a failure or any or the Termconditions contained in the Financing Commitments or in any definitive agreement related to the Financing. For Parent shall keep the Company informed on a reasonable basis and in reasonable detail of material developments relating to the Financing and the status of its efforts to arrange the Financing. Parent shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Financing Commitments or the definitive agreements related to the Financing if such purpose onlyamendment, Tenant shall have modification, waiver or remedy reduces the rightaggregate amount of the Financing available, with Landlordamends the conditions to the drawdown of the Financing, adds any condition to funding, or would reasonably be expected to adversely impact or delay in any material respect the ability of Parent and Merger Sub to consummate the transactions contemplated hereby or materially reduce the likelihood of the consummation of the transactions contemplated hereby or materially reduce the likelihood of any conditions to funding being satisfied, without first obtaining the Company’s prior written approvalconsent. Subject to the terms and conditions contained herein and satisfaction of the Tender Offer Conditions, which shall not be unreasonably withheldin the case of the Offer, conditioned or delayedand the conditions set forth in Article VII, in the case of the Merger, in the event that all conditions to assign all or part of Tenant’s interest under this Leasethe Financing Commitments (other than, 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 (collectivelyin connection with the Debt Financing, the “Trust Deed”)availability or funding of any of the Equity Financing) have been satisfied. Landlord’s written approval or denial Parent shall be provided draw down on the Financing required to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain consummate the information regarding Offer on the assignee’s financial strength, reputation Acceptance Date and experience delineated in Section 12.1the Merger on the Closing Date. 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 Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, or Parent becomes aware of any event or circumstance that makes receipt of any portion of the Financing unlikely to secure a loan permitted under occur in the manner and from the sources contemplated in the Financing Commitments, Parent shall promptly notify the Company and shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms no less beneficial and in an amount sufficient to consummate the transactions contemplated by this Section 14.2, then Agreement as promptly as practicable following the following occurrence of such event but in no event later than the End Date. Parent shall apply:
(a) Landlord will enter into a Lender Recognition deliver to the Company true and complete copies of all definitive agreements pursuant to which any such alternative source shall have committed to provide Parent and Merger Sub with any portion of the Financing. Parent and Merger Sub acknowledge and agree that their respective obligations to consummate the Agreement with are not conditioned or contingent upon receipt of the Leasehold Mortgagee;Financing.
(b) The Landlord Company will and will cause its Subsidiaries to and will use its reasonable best efforts to cause its and their respective Representatives to provide all cooperation reasonably requested by Parent in connection with the arrangement of the Financing (to the extent such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including (i) participation in a reasonable number of meetings in connection with the Financing (including due diligence sessions and meetings with ratings agencies) on reasonable advance notice, (ii) furnishing Parent and its financing sources with the financial information required to be provided pursuant to Section 6.12(a) hereof when and as required thereby, (iii) assisting Parent and its financing sources in the preparation of (A) any offering document (provided that any such document need not be issued by the Company or any of its Subsidiaries), (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Parent and its financing sources, (v) forming new direct or indirect Subsidiaries, (vi) cooperating in the preparation of, and providing and executing (or using reasonable efforts to obtain from its advisors), documents as may reasonably be requested by Parent (including any underwriting or placement agreements, pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the Chief Financial Officer of the Company with respect to solvency matters)) and otherwise reasonably facilitating, to the extent reasonably requested by Parent, the pledging of collateral (including cooperation, to the extent reasonably requested by Parent, in connection with the pay-off of existing indebtedness and the release of related Liens); provided, however, that no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the representation letter referred to above) shall not be effective until the Effective Time, and (vii) taking all actions to the extent reasonably requested by Parent 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 purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, and (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent in connection with the consummation of the Financing prior to the Acceptance Time. The foregoing notwithstanding, (x) prior to the New Directors Time, no Pre-Acceptance Date Director shall be required to sign take any Trust Deed or action with respect to the Note, or otherwise become obligated thereunder;
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon foregoing and neither 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 Company nor 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 its Subsidiaries shall be subject obligated to all conditionstake any action that requires action or approval by the Pre-Acceptance Date Directors prior to the New Directors Time, covenants and restrictions of this Lease and to all rights of Landlord hereunder;
(iy) 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 no obligation of the leasehold interest shall be deemed extended by Company or any of its Subsidiaries or Representatives under any agreement, certificate, document or instrument relating to the number of days of delay occasioned by judicial restriction Financing and executed 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 delivered pursuant to this LeaseSection 6.11(b) without shall be effective until the prior written consent Effective Time, and (z) none of each Leasehold Mortgagee;
the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other cost or expense (mother than reasonable out-of-pocket costs, which shall be reimbursed by Parent pursuant to this Section 6.11(b)) The Trust Deed shall provide that, prior to the institution of any proceedings to foreclose Acceptance Time. Parent shall, promptly upon request by the Trust Deed Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company 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 its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for and against any Improvements, including but not limited to construction loans, long term loans and refinancing permitted all losses suffered or incurred by them in connection with the arrangement of the Debt Financing and any information utilized in connection therewith (other than information provided by the terms of Company or its Subsidiaries). All nonpublic or otherwise confidential information regarding the Company obtained by Parent, Merger Sub, their Representatives or their financing sources pursuant to 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 2 contracts
Sources: Merger Agreement (Stealth Acquisition Corp.), Merger Agreement (Safenet Inc)
Financing. Tenant may seek (a) Parent shall, and shall cause each Parent Subsidiary to, use reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things reasonably necessary or advisable to obtain funds sufficient to fund the Financing Amounts on or prior to the date on which the Merger is required to be consummated pursuant to the terms hereof, which may include the issuance and sale of senior unsecured notes and/or the entry into a committed term loan facility (any such (1) notes that have been funded and are not subject to finance the Improvements and an escrow arrangement, (2) notes that are 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 approvalan escrow agreement, which shall have conditions to funding not be unreasonably withheldless favorable than those set forth in the Debt Commitment Letter as of the date hereof and (3) committed term loan facility, conditioned or delayedwhich shall have conditions to funding not less favorable than those set forth in the Debt Commitment Letter as of the date hereof, 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 DeedReplacement Financing”)). Landlord’s written approval In furtherance and not in limitation of the foregoing, Parent shall use reasonable best efforts to take, or denial shall cause to be provided taken, all actions and do, or cause to Tenant within twenty (20) Business Days be done, all things reasonably necessary or advisable to obtain the proceeds of Tenant’s written request, which shall contain the information regarding Debt Financing on the assignee’s financial strength, reputation terms and experience delineated in Section 12.1. If Landlord does not respond subject only to the request within twenty conditions described in the Debt Commitment Letter on or prior to the date on which the Merger is required to be consummated pursuant to the terms hereof, including by (20i) Business Daysmaintaining in effect the Debt Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, the request “flex” provisions contained in any related fee letter) or with other terms agreed by Parent and the Financing Parties provided that the conditions to the consummation thereof are not more onerous than the conditions set forth in the Debt Commitment Letter as of the date hereof, without any Prohibited Modification, (iii) satisfying (or obtaining the waiver of) on a timely basis all conditions in the Debt Commitment Letter and the Definitive Agreements that are in Parent's of any Parent Subsidiary’s control and complying with its obligations thereunder and (iv) enforcing its rights under the Debt Commitment Letter. Parent shall pay, or cause to be deemed approved. In paid, as the event Tenant assigns same shall become due and payable, all or any portion of Tenant’s Interest to secure a loan permitted fees and other amounts 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 Letter and Definitive Agreements.
(b) The Landlord shall not be required to sign Parent or 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;
Parent Subsidiary may (i) The Landlord will accept performance amend, modify, replace, assign or agree to any waiver under this Lease by the Debt Commitment Letter or any Leasehold Mortgagee as though Definitive Agreements without 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 prior written approval 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 Company, provided, that neither Parent nor 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 LeaseParent Subsidiary shall, 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 (mexcept if Parent has available sufficient cash on hand or cash from other funding sources pursuant to a Replacement Financing to fund the Financing Amounts) The Trust Deed shall provide thatpermit, prior 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 or the Definitive Agreements if such amendment, replacement, supplement, modification, waiver or remedy (A) adds new (or adversely modifies any existing) conditions to the institution consummation of all or any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu portion of the foreclosure Debt Financing, (B) reduces the aggregate principal amount of the Trust DeedDebt Financing unless the aggregate amount of the Debt Financing following such reduction, together with cash on hand and cash available to Parent pursuant to a Replacement Financing, is sufficient to consummate the holder Merger and pay the other Financing Amounts (it being understood that any mandatory commitment reduction due to obtaining net proceeds of a debt or beneficiary thereof shall notify Landlord equity issuance, entry into a limited condition bank loan or obtaining net proceeds of certain asset sales 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 such Debt Commitment Letter (a “Replacement Financing Reduction”) shall contain be permitted), (C) adversely affects the written agreement ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified or (D) would otherwise reasonably be expected to prevent, materially impede or materially delay the consummation of the Leasehold Mortgagee Merger and the other transactions contemplated by this Agreement (the effects described in clauses (A) through (D), collectively, the “Prohibited Modifications”); provided, that Landlord notwithstanding the foregoing, Parent or any Parent Subsidiary may modify, supplement or amend the Debt Commitment Letter to (1) add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement and (2) implement or exercise any “market flex” provisions contained in the Debt Commitment Letter or (ii) terminate the Debt Commitment Letter or any Definitive Agreement only if it has obtained Replacement Financing with net proceeds that, together with cash on hand, is sufficient to pay the Financing Amounts. In the event that new commitment letters and/or fee letters are entered into in accordance with any amendment, replacement, supplement, termination or other modification of the Debt Commitment Letter permitted pursuant to this Section 6.12, such new commitment letters and/or fee letters shall be notified deemed to be the “Debt Commitment Letter” for all purposes of this Agreement and references to “Debt Financing” herein shall include and mean the financing contemplated by the Leasehold Mortgagee within thirty (30) days Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified, as applicable. Parent shall promptly deliver to the Company copies 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 Tenantamendment, 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 replacement, supplement, termination, modification, waiver or destruction replacement 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 Commitment Letter and/or any Definitive 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, Merger Agreement (Tapestry, 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 Each of Parent, Midco and Merger Sub 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 to arrange the Financing in a Lender Recognition Agreement timely manner including to (i) maintain in effect the Financing Documents, (ii) satisfy, or cause its Representatives to satisfy, on a timely basis all conditions in the Financing Documents that are within its control, other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to comply with its obligations under this Agreement, and (iii) subject to the Leasehold Mortgagee;terms and conditions of the Financing Documents and the requirements of Section 2.02, draw upon and consummate the Financing at the Closing. Upon the satisfaction or, to the extent permitted by applicable Law, waiver of all conditions applicable to Debt Financing, each of Parent, Midco and Merger Sub shall use its reasonable best efforts (excluding, for the avoidance of doubt, the commencement of any litigation) to cause the Financing Sources and any other Persons providing the Debt Financing and the Equity Financing to fund the Debt Financing and the Equity Financing, respectively, on the Closing Date.
(b) The Landlord shall not be required to sign If Parent, Midco or Merger Sub becomes aware that any Trust Deed or portion of the Note, or otherwise Debt Financing has 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 Debt Financing Commitment, (A) Parent shall promptly so notify the Company, and (B) each of Parent, Midco and Merger Sub shall use its reasonable best efforts to arrange to obtain alternative debt financing from the same or their reversionary interest alternate sources, as promptly as practicable following the occurrence of such event, on terms and conditions no less favorable, in the Improvements;
(d) Any interest aggregate, to Parent, Midco and Merger Sub than those contained 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;
Debt Financing Commitment (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 as determined in the Improvements or reasonable judgment of Parent), in an amount sufficient (assuming (1) the Premises;
Equity Financing is funded in accordance with the Equity Commitment Letter, (g2) 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 contributions 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 Lease, the Leasehold Mortgagee who would be senior Contribution Agreements are made 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 Contribution Agreements, and (3) the satisfaction 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 conditions to the California Civil Code obligation of Parent, Midco and Merger Sub to consummate the Merger as set forth in Section 2924;
8.01 and Section 8.02 or the waiver of such conditions by Parent) to consummate the Merger and other Transactions (nthe “Alternative Debt Financing”), and to enter into new definitive agreements with respect to such Alternative Debt Financing (the “Alternative Debt Financing Documents”) Tenant and Parent shall give Landlord written notice of any Trust Deed prior deliver 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.Company as promptly as practicable after such
Appears in 2 contracts
Sources: Merger Agreement (Chen Chris Shuning), Merger Agreement (Pactera Technology International Ltd.)
Financing. Tenant may seek Parent and Acquisition Sub shall use their commercially reasonable efforts to obtain a loan to finance the Improvements proceeds of the Financing on the terms and conditions described in the Commitment Letter, Parent Consent Letter and Parent Commitment Letter and to refinance obtain the Improvements from time funds contemplated by the Equity Commitment (and 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 contribute such funds to Tenant pursuant the Company), including using commercially reasonable efforts to (A) negotiate definitive agreements with respect to the Financing consistent with the terms and conditions contained in the Commitment Letter and (B) satisfy on a promissory note timely basis all conditions in such definitive agreements the satisfaction of which is within the control of Parent or Acquisition Sub. Parent and a trust deed or mortgage (collectivelyAcquisition Sub shall use their commercially reasonable efforts to comply with their respective obligations, and enforce their respective rights, under the Commitment Letter, the “Trust Deed”)Parent Consent Letter and Parent Commitment Letter and shall cause RHJI to comply with its obligations under the Equity Commitment. Landlord’s written approval Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to obtain the proceeds of the Financing and shall not permit any amendment or denial modification to, or any waiver of any material provision or remedy under, any of the Commitment Letter, the Parent Consent Letter, Parent Commitment Letter or the Equity Commitment if such amendment, modification, waiver or remedy amends the conditions to the drawdown of the Financing in a manner adverse to the interests of the Company and its shareholders, in each case, in any material respect or would adversely affect in any material respect the ability of Parent or the Company to effect the Financing or obtain the proceeds of the Equity Commitment. The Company shall also use commercially reasonable efforts to assist and cooperate with Parent and Acquisition Sub in connection with their efforts to obtain the proceeds of the Financing, including providing reasonably required information relating to the Company and the Company Subsidiaries to the financial institution or institutions providing the Financing and executing and delivering, and causing the Company Subsidiaries to execute and deliver, definitive agreements with respect to the Financing and 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, however, that no obligation of the Company or any Company Subsidiary under any such certificate, document or instrument shall be provided effective until the Effective Time and none of the Company or any Company Subsidiary shall be required to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain pay any commitment or other similar fee or incur any other liability in connection with the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Financing prior to the request within twenty (20) Business Days, the request shall be deemed approvedEffective Time. In the event Tenant assigns all or any portion that the Financing is not available to consummate the Refinancing and pay related fees and expenses of Tenant’s Interest to secure a loan permitted under the Transactions contemplated by this Section 14.2Agreement and the other Transaction Agreements, then Parent shall promptly notify the following Company and Parent and Acquisition Sub shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with the Leasehold Mortgagee;
(b) The Landlord shall not be required use their commercially reasonable efforts 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 obtain alternative financing on terms that are no less favorable to Parent and Acquisition Sub than those set forth in the Premises Commitment Letter, Parent Consent Letter or their reversionary interest Parent Commitment Letter, as applicable, and in the Improvements;
same amounts as contemplated by the Commitment Letter (d) Any interest in including for working capital purposes following 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 (respectivelyClosing) or reversionary interest in Parent Commitment Letter, as applicable (the Improvements or the Premises;
(g) Except as otherwise "Alternative Financing"); provided herein, that no Leasehold Mortgagee or anyone claiming by, through or under such Leasehold Mortgagee shall, by virtue of such claim, acquire any Alternative Financing shall require a greater rights cash equity commitment 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 that 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 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 destructionEquity Commitment.
(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: Agreement and Plan of Merger (Metaldyne Corp), Agreement and Plan of Merger (Credit Suisse/)
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 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 (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 (a) Parent and Purchaser shall use reasonable best efforts to obtain a loan to finance arrange the Improvements 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 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 approvedCommitment Letter. In the event Tenant assigns all or any portion of Tenant’s Interest the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, Parent and Purchaser shall use reasonable best efforts to secure a loan permitted under arrange and obtain alternative financing in an amount sufficient to consummate the transactions contemplated by this Section 14.2, then the following shall apply:
(a) Landlord will enter into a Lender Recognition Agreement with terms and conditions not materially less favorable (taken as a whole) to Parent and Purchaser than the Leasehold Mortgagee;terms and conditions (taken as a whole) set forth in the Commitment Letter (“Alternative Committed Financing”), including from alternative sources, following the occurrence of such event. Parent and Purchaser shall give the Company prompt written notice upon becoming aware of any breach by any party of the Commitment Letters or any termination of the Commitment Letters. Parent and Purchaser shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing or the Alternative Committed Financing, as the case may be, and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, any Commitment Letter if such amendment, modification or waiver would reasonably be expected to materially impair or delay the ability of Parent or Purchaser to receive the Financing or the Alternative Committed Financing, as the case may be, at or before the Closing or to consummate the transactions contemplated hereby. Parent and Purchaser shall provide written notice to the Company promptly upon receiving the Financing or the Alternative Committed Financing, as the case may be.
(b) The Landlord Prior to the Closing, the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide and or cause its and its Subsidiaries’ Representatives to provide to Parent and Purchaser, in each case at Parent’s sole expense, all cooperation reasonably requested by Parent or Purchaser that is customary in connection with the arrangement of the type of Financing contemplated by the Commitment Letter (provided in all cases that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), which reasonable best efforts shall include (i) (A) furnishing Parent and Purchaser and their Financing Sources, as promptly as reasonably practicable following Parent’s or Purchaser’s request, with such pertinent and customary information, to the extent reasonably available to the Company or its Subsidiaries, regarding the Company and its Subsidiaries, and any supplements thereto, as may be reasonably requested by Parent or Purchaser to consummate the Financing and (B) furnishing Parent and Purchaser and their Financing Sources, as promptly as reasonably practicable following Parent’s or Purchaser’s request, with information regarding the Company and 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) customary for the arrangement of loans contemplated by the Financing, to the extent reasonably available to the Company, its Subsidiaries or its Representatives and to assist in preparation of customary rating agency or lender presentations relating to such arrangement of loans, (ii) furnishing all consolidated financial statements, business and other financial data (other than pro forma financial statements but including, for the avoidance of doubt, any financial information of the Company and its Subsidiaries reasonably necessary to permit the Parent to prepare pro forma financial statements required under the Commitment Letter, and excluding textual descriptions of the Company’s business and financial results (other than what is customarily contained in the notes to sign the Company’s financial statements)), and audit reports of the Company and its Subsidiaries, and any Trust Deed supplements thereto required under the Commitment Letter and written financial information reasonably necessary for the Parent and the Financing Sources to prepare the “Confidential Information Memorandum” referred to in the Commitment Letter (the information referred to in clauses (i) and (ii) being referred to in this Agreement as the “Required Information”), (iii) participating and having senior management and its Representatives participate in a reasonable number of meetings, presentations, confidential information memorandum presentations and meetings, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing (including customary one-on-one meetings with the Financing Sources), (iv) assisting with the preparation of materials for rating agency presentations, bank information memoranda, and similar documents required in connection with the Financing; provided that any rating agency presentations, bank information memoranda, and similar documents required in connection with the Financing shall contain disclosure reflecting the Surviving Corporation and/or its Subsidiaries as the obligor, (v) taking all corporate actions, subject to and only effective upon the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time, (vi) executing and delivering any customary pledge and security documents, credit agreements, ancillary loan documents and customary closing certificates and documents (in each case, subject to and only effective upon occurrence of the Effective Time) and assisting in preparing schedules thereto as may be reasonably requested by Parent or Purchaser (including delivery of borrowing base certificates and delivery of a solvency certificate of the Notechief financial officer of the Company, (vii) assisting in (A) the preparation, execution and delivery of one or otherwise become obligated thereunder;more credit agreements, indentures, currency or interest hedging agreements or (B) the amendment or modification of any of the Company’s or its Subsidiaries’ currency or interest hedging agreements, if any, in each case, on terms that are reasonably requested by Parent or Purchaser in connection with the Financing; provided that no obligation of the Company or any of its Subsidiaries under any such agreements or amendments shall be effective until the Effective Time, (viii) in connection with the Financing, providing customary authorization letters to the Financing Sources for the Financing authorizing the distribution of information to prospective lenders and containing a customary representation to the Financing Sources for the Financing that such information does not contain a material misstatement or omission 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 Subsidiaries or their securities, (ix) using reasonable best efforts to 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 indebtedness contemplated by the Commitment Letter to be paid off, discharged and terminated on the Closing Date, (x) providing at least two Business Days prior to the expected Closing Date all documentation and other information about the Company and each of its Subsidiaries as is requested by the Financing Sources for the Financing and required under applicable “know your customer” and anti-money-laundering rules and regulations including the USA PATRIOT Act, (xi) using reasonable best efforts to cause accountants to consent to the use of their reports in any material relating to the Financing, (xii) assisting in obtaining corporate and facilities ratings for the Financing, (xiii) requesting the Company’s independent auditors to cooperate with Parent’s reasonable best efforts to obtain customary accountant’s comfort letters (including “negative assurance”) and consents from the Company’s independent auditors, (xiv) assisting with the execution, preparing and delivering of original stock certificates and original stock powers to the Financing Sources (including providing copies thereof prior to the Closing Date) on or prior to the Closing Date, and (xv) ensuring that there are no competing issues of debt securities or syndicated credit facilities of the Company and its Subsidiaries being offered or arranged between the execution of this Agreement and the Effective Time. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ and accountants costs and expenses) incurred by the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.12(b) and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all direct and actual losses (other than lost profits), damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing, any action taken by them at the request of Parent pursuant to this Section 6.12(b) and any information used in connection therewith (except with respect to any information provided in writing by the Company or any of its Subsidiaries specifically for use in connection therewith), except, in each case, insofar as such losses, damages, claims, costs or expenses (i) arose out of or resulted from the common law fraud, willful misconduct or gross negligence of the Company, its Subsidiaries or their Representatives, (ii) directly resulted from the breach of any of the obligations of the Company, its Subsidiaries or their Representatives under this Agreement or (iii) that were agreed to in a settlement without the written consent of Parent.
(c) No such lienNotwithstanding anything to the contrary contained in this Section 6.12, charge (i) no obligation of the Company or encumbrance any of its Subsidiaries under any agreement, certificate, document or instrument (other than the authorization letters referred to above) shall constitute a lien be effective until the Effective Time (and nothing contained in this Section 6.12 or encumbrance upon otherwise shall require the Landlord’s Company or any of its Subsidiaries, prior to the Effective Time, to be an obligor with respect to the Financing) and (iii) none of the Company or any of its Subsidiaries or Representatives shall be required to pay or incur any liability for any commitment or other fee title or pay or incur any other liability in connection with the Premises or their reversionary interest in Financing prior to the Improvements;Effective Time.
(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 For purposes of this Lease;
(e) The Trust Deed imposes no financial obligations on Section 6.12, the Landlord, contingent or otherwise;
(f) The Trust Deed term “Financing” 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 also be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against to include 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 Alternative Committed Financing and the indebtedness which it secures at a purchase price equal term “Commitment Letter” shall also be deemed to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for the holder include any commitment letter (or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements in connection similar agreement) 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 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 destructionAlternative Committed 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 (Akorn Inc), Merger Agreement (Hi Tech Pharmacal Co 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) The parties hereto acknowledge that Parent may attempt to arrange third party debt financing for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”) and, if Parent so chooses to seek the Debt Financing, prior to obtain the Effective Time, Company shall use, and shall cause its Subsidiaries to use, reasonable best efforts to provide, and shall use reasonable best efforts to cause any Representatives retained by Company or any of its Subsidiaries to use reasonable best efforts to provide, in each case at Parent’s sole cost and expense, such cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by ▇▇▇▇▇▇, including (i) participation in a loan to finance the Improvements reasonable number of teleconferences, meetings including rating agency meetings, drafting sessions, presentations, road shows and due diligence sessions, in each case upon reasonable advance notice and at mutually agreeable dates and times, and to refinance otherwise assist the Improvements from time providers of the Debt Financing in obtaining ratings in connection with the Debt Financing, (ii) make available to time during Parent, its advisors or its Debt Financing Sources such financial and other pertinent information regarding Company and the Term. For Company Subsidiaries as may be reasonably requested by Parent, its advisors or its Debt Financing Sources, including (I) the unaudited financial statements of the Company for each fiscal quarter of the Company ended at least forty-five (45) days prior to the Closing and the audited financial statements of the Company for any fiscal year of the Company ended at least ninety (90) days prior to the Closing and (II) such purpose onlyinformation as is reasonably necessary to allow Parent, Tenant its advisors and its Debt Financing Sources to prepare pro forma financial statements (it being understood that Parent, and not Company or any of its Subsidiaries, shall have be responsible for the rightpreparation of the pro forma financial statements and any other pro forma information, including any pro forma adjustments), (iii) reasonably assisting Parent and the Debt Financing Sources in the preparation of lender and investor presentations, rating agency presentations, bank information memoranda, marketing materials and other similar documents and materials in connection with Landlordthe Debt Financing, (iv) reasonably cooperating and otherwise assisting with marketing efforts of Parent and the Debt Financing Sources for any portion of the Debt Financing, (v) facilitating the granting of a security interest (and perfection thereof) in collateral, including obtaining releases of existing Liens, provided that no security interest and no release of existing Liens shall be effective until the Closing, (vi) assisting in the preparation, execution and delivery (limited, in the case of execution and delivery, solely to officers continuing with Company and the Company Subsidiaries after the Closing) of one or more credit agreements, indentures, purchase agreements, pledge and security documents, customary secretary’s prior written approvalcertificates and other definitive documentation, which in each case as may be reasonably required by Parent; provided that any such agreements, documents and related certificates and instruments shall be subject to the occurrence of the Closing and become effective no earlier than the Closing, (vii) causing the taking of corporate, limited liability or other organizational actions (subject to the occurrence of the Closing) by the Company reasonably necessary to permit the consummation of the Debt Financing, (viii) executing and delivering (A) customary authorization letters to the Debt Financing Sources authorizing the distribution of information regarding Company to prospective lenders or investors in connection with the Debt Financing and containing a customary representation that the public side versions of such documents do not be unreasonably withheldinclude material non-public information about Company and its Subsidiaries or their securities, 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 customary representation as to the accuracy of the written information contained in the disclosure and marketing materials regarding Company and its Subsidiaries, subject to customary exceptions and qualifications, and (collectively, the “Trust Deed”). Landlord’s written approval or denial shall be provided ix) furnishing to Tenant within twenty Parent and its lenders promptly (20and in any event at least five (5) 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 Date) with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and beneficial ownership regulations (20including beneficial ownership certifications as under 31 C.F.R. § 1010.230), and requested by the Debt Financing Sources in writing at least ten (10) Business DaysDays prior to the Closing Date. Notwithstanding anything to the contrary contained herein, nothing in this Section 6.13(a) shall require any such cooperation or assistance to the request shall be deemed approved. In the event Tenant assigns all extent that it could result in Company or any portion of Tenant’s Interest its Subsidiaries being required to secure (1) pledge any assets as collateral prior to the Effective Time, (2) incur any liability (including payment of fees) in connection with the Debt Financing prior to the Effective Time, (3) take any actions to the extent such actions would or could reasonably be expected to (I) unreasonably interfere with the ongoing business or operations of Company or any of its Subsidiaries, (II) reasonably be expected to subject any director, manager, officer or employee of Company or any of its Subsidiaries to any actual or potential personal liability, (III) conflict with, or result in any violation of or default (or an event that, with or without notice or lapse of time or both, would become a loan permitted under default) under, or give rise to a right of termination, cancelation or acceleration of any obligation or to loss of a material benefit under, or to increased, additional, accelerated or guaranteed rights or entitlements (other than de minimis increased, additional, accelerated or guaranteed rights or entitlements) of any Person under, or result in the creation, prior to the Effective Time, of any Lien upon any of the properties or assets of Company or any of its Subsidiaries under, any provision of (x) the certificate or articles of incorporation, bylaws or comparable organizational documents of Company or any of its Subsidiaries (in each case, not entered into in contemplation of this Section 14.26.13(a)), then (y) any Contract to which Company or any of its Subsidiaries is a party or by which any of their respective properties, assets or businesses is bound (in each case, not entered into in contemplation of this Section 6.13(a)) or (z) any Judgment or Law applicable to Company or any of its Subsidiaries or their respective properties, assets or businesses, (IV) prior to the Effective Time, require any such entity to change any fiscal period, or (V) cause (x) any representation or warranty set forth in Article IV or Article X of this Agreement to be inaccurate or breached, (y) any closing condition set forth in Article VII of this Agreement to fail to be satisfied or (z) any other breach of this Agreement, any other Transaction Document or any CSG-Vista Outdoor Transaction Document, (4) commit to take any action under any certificate, document or instrument that is not contingent upon the Closing, (5) provide access to or disclose information that Company reasonably determines could (I) jeopardize any attorney-client privilege, attorney work product protection or other legal privilege of, or conflict with any confidentiality requirements applicable to, Company or any of its Subsidiaries, (II) expose Company or any of its Subsidiaries to risk of liability for disclosure of sensitive or personal information or (III) result in the disclosure of trade secrets or competitively sensitive information to third parties, (6) cause any director, manager or equivalent of Company or any of its Subsidiaries to pass resolutions to approve the Debt Financing or authorize the creation of any agreements, documents or actions in connection therewith (other than any director, manager or equivalent of Company or any of the Company Subsidiaries who will continue in such a position following shall apply:
the Closing and the passing of such resolutions), in each case that are not contingent on the Closing or would be effective prior to the Effective Time, (a7) Landlord will enter into a Lender Recognition Agreement deliver any opinion of counsel (other than customary opinions of counsel delivered in connection with the Leasehold Mortgagee;definitive agreements for the Debt Financing at the Closing) or (8) require Company or any of the Company Subsidiaries or Vista Outdoor or any of its Subsidiaries to prepare any financial statements or other information that is not reasonably available to Company or any of the Company Subsidiaries or Vista Outdoor or any of its Subsidiaries.
(b) The Landlord Parent shall not be required responsible for all fees and expenses related to sign the Financing contemplated hereby. Accordingly, notwithstanding anything to the contrary in Section 6.06, Parent shall promptly reimburse Company and each of its Subsidiaries for all reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by Company or such Subsidiary in connection with their cooperation pursuant to Section 6.13(a) in connection with the Financing. Parent shall indemnify and hold harmless Company and each of its Subsidiaries and all of their respective directors, officers, managers, employees and Representatives from and against any Trust Deed and all Liabilities suffered or incurred by them in connection with the Notearrangement of the Financing, their assistance pursuant to this Section 6.13 or otherwise become obligated thereunder;or any information utilized in connection therewith, in each case other than as a result of fraud, bad faith, gross negligence or willful misconduct by or on behalf of such Person. Notwithstanding anything to the contrary in this Agreement, prior to the Effective Time, neither Company nor any of its Subsidiaries shall have any Liability under any loan agreement or any related document or any other agreement or document related to the Financing.
(c) No For the avoidance of doubt, ▇▇▇▇▇▇ and Merger Sub, on behalf of themselves and their respective Affiliates, expressly acknowledge and agree that (i) their respective obligations to consummate the Transactions are not subject to any condition or contingency with respect to receipt of the Financing and (ii) the condition set forth in Section 7.03(b), as applied to the obligations of Company under this Section 6.13, shall be deemed to be satisfied unless (A) Company has materially breached its obligations under this Section 6.13, (B) Parent has notified Company of such lienbreach in writing in good faith, charge detailing in good faith reasonable steps that comply with this Section 6.13 in order to cure such breach, and (C) Company has not taken such steps or encumbrance shall constitute otherwise cured such breach with reasonably sufficient time prior to the End Date and the Debt Financing has not been consummated as a lien or encumbrance upon the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;result of such breach.
(d) Any interest Company hereby consents to the use of its and the Company Subsidiaries’ trademarks, trade names and logos, in each case relating to the Premises which Company Business, in connection with 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 Financing; 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 any Leasehold Mortgagee as though the same had been performed by Tenant;
(j) The time available to such trademarks, trade names and logos are used solely in a Leasehold Mortgagee to initiate foreclosure proceedingsmanner that is not intended, or reasonably likely, to proceed with foreclosure proceedings, harm or disparage Company or any Company Subsidiaries or the reputation or goodwill of Company or the Company Subsidiaries and (ii) such use is subject 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 MortgageeCompany’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior reasonable review 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 destructionadvance thereof.
(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 (Vista Outdoor Inc.), Merger Agreement (Revelyst, Inc.)
Financing. Tenant may seek (a) Buyer has received, accepted and agreed to obtain a loan to finance commitment letter, dated March 6, 2011 (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”)) relating to the commitment of the Lenders to provide the debt financing required to consummate the Contemplated Transactions. Landlord’s written approval The debt financing required to consummate the Contemplated Transactions, whether obtained pursuant to the arrangements contemplated by the Commitment Letter or denial shall be through substitute permanent financing arrangements which may involve public or private offerings of debt or equity securities, is collectively referred to in this Agreement as the “Financing”. A complete and correct copy of the executed Commitment Letter has been 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;Agent.
(b) The Landlord Buyer shall not be required use its reasonable best efforts to sign any Trust Deed or the Notetake, or otherwise become obligated thereunder;cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and obtain the Financing on the terms and conditions described in the Commitment Letter, including (i) taking actions to enforce its rights under the Commitment Letter and (ii) using its reasonable best efforts to (A) negotiate definitive agreements with respect thereto on the terms and conditions contained therein or on other terms no more adverse to Buyer in any material respect, (B) satisfy on a timely basis all conditions applicable to it in such definitive agreements and (C) consummate the Financing at or prior to the Closing but in no event later than June 1, 2011.
(c) No such lienBuyer may terminate and replace the Commitment Letter with a New Commitment Letter or may amend the Commitment Letter to add lenders, charge lead arrangers, bookrunners, syndication agents or encumbrance shall constitute a lien or encumbrance upon similar entities who 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 Commitment Letter as of the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlordhereof, 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 so long 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 addition of such lenders, lead arrangers, bookrunners, syndication agents or similar entities would not reasonably be expected to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, prevent or to obtain possession materially delay the consummation of the leasehold interest Contemplated Transactions and (ii) the Arranger (as defined in the Commitment Letter) shall be deemed extended by remain obligated and committed to fund its financing commitments under the number of days of delay occasioned by judicial restriction or application or operation of law against Commitment Letter (as in effect prior to any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
(kamendment) If two or more Leasehold Mortgagees exercise their rights under this Leaseon the terms and conditions of, and subject to the assignment provisions set forth in, the Leasehold Mortgagee who would be senior Commitment Letter (as 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, effect prior to the institution of any proceedings to foreclose the Trust Deed such amendment). Upon any such amendment, replacement, supplement or of negotiations to accept an assignment in lieu modification of the foreclosure Commitment Letter in accordance with this Section 6.6(c), the term “Commitment Letter” shall mean the Commitment Letter as so amended, supplemented or modified or any New Commitment Letter in replacement of the Trust DeedCommitment Letter, as the case may be, and, in the event that Buyer obtains Alternative Financing in accordance with Section 6.6(d), the holder term “Commitment Letter” shall mean the commitment letter (as amended, replaced, supplemented or beneficiary thereof shall notify Landlord modified in writing that such proceedings or negotiations are to be commenced, and Landlord shall have the right, but not the obligation, within sixty (60accordance with this Section 6.6(c)) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal related to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for Alternative Financing. The term “New Commitment Letter” shall mean the holder instrument replacing the existing Commitment Letter that (A) is on terms not materially less beneficial to Buyer than those set forth in the Commitment Letter; (B) does not involve any material conditions precedent to funding the Financing that are not contained in the Commitment Letter; and (C) would not reasonably be expected to prevent 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 materially delay the terms of this Lease shall contain the written agreement consummation 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 destructionContemplated Transactions.
(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 Agreement (Tortoise Capital Resources Corp), Purchase Agreement (James River Coal 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, 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) 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 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 To the extent that the Parent does not have cash currently available that is sufficient to enable it to consummate the Merger, 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 procure and have available, as of the Closing, funds sufficient to 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 Leasehold Mortgagee;consummation of the Mergers, all related fees and expenses required to be paid as of the date of the consummation of the Mergers and the funds to be provided by (or on behalf of) Parent to the Company to enable the Company to fund the repayment or refinancing of the Notes (if elected by Parent) and the Company Credit Agreements. In furtherance of the foregoing, Parent shall use its reasonable best efforts to cause the Financing Sources to comply with their obligations under any applicable debt commitment letters, including the Debt Commitment Letter, or definitive financing agreements and to fund, subject to the satisfaction or waiver of the conditions set forth in the Debt Commitment Letter or other definitive financing agreements, on or before the Closing Date any financing required to consummate the transactions contemplated hereby. Parent shall keep the Company informed when so reasonably requested by the Company and in reasonable detail of the status of its efforts to arrange any financing required in connection with the consummation of the transactions contemplated hereby, including any Debt Financing, and to satisfy the conditions thereof, including advising and updating the Company, in a reasonable level of detail, with respect to any material developments concerning the status of such financing, including any Debt Financing, and the proposed funding date thereunder.
(b) The Landlord shall not be required Notwithstanding anything 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 contrary contained 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 Parent’s obligations hereunder are not subject to all conditionsany condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Mergers and the transactions contemplated by this Agreement, covenants including the payment of any fees and restrictions of this Lease expenses 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, repayment or to obtain possession refinancing of the leasehold interest shall be deemed extended Notes (if elected 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;
(kParent) 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 destructionCompany Credit Agreements.
(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 (Sungard Capital Corp Ii), Merger Agreement (Fidelity National Information Services, 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 may seek (a) Parent shall use its reasonable best efforts to obtain a loan the Financing on the terms and conditions described in the Commitment Letter, including (i) using its reasonable best efforts to finance negotiate and enter into definitive financing agreements with respect thereto on terms and conditions contemplated in the Improvements Commitment Letter provided to the Company pursuant to Section 4.8, (ii) fully paying any and all commitment fees or other fees required by the Commitment Letter when due pursuant to refinance the Improvements provisions thereof, (iii) using its reasonable best efforts to satisfy all conditions applicable to Parent in the Commitment Letter and such definitive financing agreements, (iv) using its reasonable best efforts to comply with its obligations under the Commitment Letter and (v) enforcing its rights under the Commitment Letter. Parent shall keep the Company reasonably informed and in reasonable detail (including providing the Company with copies of all definitive documents related to the Financing in accordance with Section 4.8) with respect to all material developments concerning the Financing. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice (x) of any material breach or default by any party to any of the Commitment Letter or definitive financing agreements related to the Financing of which Parent becomes aware, (y) of the receipt of any written notice from any Financing Party with respect to any (1) actual or potential material breach, default, termination or repudiation by any party to any of the Commitment Letter or definitive financing agreements related to the Financing of any provisions of the Commitment Letter or definitive financing agreements related to the Financing or (2) dispute or disagreement between or among any parties to any of the Commitment Letter or definitive financing agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, and (z) if at any time management of Parent believes 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 financing agreements related to the Financing. As soon as reasonably practicable, Parent 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 Parent need not provide any information believed to be privileged, that is requested for purposes of litigation or that is related to fees and other economic information redacted from such agreements that is consistent with the information redacted from the Fee Letters executed in connection with the Commitment Letter and consistent with Section 4.8. Parent 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 Commitment Letter, Fee Letters or definitive financing agreements, and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, provided that Parent shall not permit any such purpose onlyamendment or modification to be made to, Tenant shall have or any waiver of any material provision or remedy under, the rightCommitment Letter or replace all or a portion of the Financing with alternate financing arrangements that, with Landlord’s in each case, would reduce the aggregate amount of the Financing (other than immaterial reductions or as otherwise proved in such Commitment Letter or Fee Letters, including “flex provisions”), amend the conditions to the drawdown of the Financing in a manner adverse to the interests of the Company, or which would otherwise in any other respect reasonably be expected to impair, delay or prevent the consummation of the transactions contemplated by this Agreement without the prior written approval, consent of the Company (which consent 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 Parent 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 Company copies of any such amendment, modification or replacement, provided that Parent shall not be obligated to deliver to the Company copies of any Fee Letters or other information redacted from such agreements that is consistent with the economic information redacted from the Fee Letters entered into in connection with the Commitment Letter and consistent with Section 4.8.
(20b) Business Days, the request shall be deemed approved. In the event Tenant assigns If all or any portion of Tenant’s Interest the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, Parent shall use its reasonable best efforts to secure a loan permitted under this Section 14.2arrange to promptly obtain such Financing from alternative sources on terms not materially less favorable, then in the following shall apply:
aggregate, to Parent (aincluding with respect to the conditionality thereof) Landlord will enter into a Lender Recognition Agreement in an amount sufficient, when added to the portion of the Financing that is available to pay in cash all amounts required to be paid by Parent in connection with the Leasehold Mortgagee;
Merger (b“Alternative Financing”), and to obtain a new financing commitment letter (the “Alternative Commitment Letter”), fee letter and a new definitive agreement with respect thereto (the “Alternative Financing Agreement”) The Landlord shall that provides for financing on terms not be materially less favorable, in the aggregate, to Parent and in an amount that is sufficient, when added to the portion of the Financing that is available, to pay in cash all amounts required to sign any Trust Deed or be paid by Parent and the Note, or otherwise become obligated thereunder;Surviving Corporation in connection with the Merger.
(c) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon the Landlord’s fee title References 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 Agreement 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 “Financing” shall include the financing contemplated under the Commitment Letter and any Alternative Commitment Letter as permitted by this Lease Section 6.13 to be amended, modified, supplemented or replaced (including, for the avoidance of doubt, any alternate financing transactions permitted hereunder), (ii) “Commitment Letter” shall include such documents as permitted by this Section 6.13 (including any Leasehold Mortgagee as though the same had been performed by Tenant;
Alternative Commitment Letter) to be amended, modified or replaced, in each case from and after such amendment, modification or replacement and (jii) The time available to a Leasehold Mortgagee to initiate foreclosure proceedings, to proceed with foreclosure proceedings, or to obtain possession of the leasehold interest definitive financing agreements shall be deemed extended by the number of days of delay occasioned by judicial restriction or application or operation of law against to include 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 destructionAlternative Financing 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 (Sealy Corp), Merger Agreement (Tempur Pedic International Inc)
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) 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 (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) Notwithstanding anything to obtain a loan the contrary contained in this Agreement, it is expressly understood and agreed by the Parties that (x) the Debt Financing Commitment by its terms contemplates reductions of the commitments thereunder or the termination thereof pursuant to finance the Improvements provisions entitled “Mandatory Commitment Reductions and Prepayments” in Annex B to refinance the Improvements from time to time during the Term. For such purpose only, Tenant Debt Financing Commitment and (y) that Acquiror shall have the right, with Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned right to terminate or delayed, to assign reduce any and all or part of Tenant’s interest commitments under this Lease, as security to any Institutional Lender (a “Leasehold Mortgagee”) which has advanced such funds to Tenant the Debt Financing Commitment pursuant to a promissory note the provisions entitled “Optional Commitment Reductions 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 Prepayments” in Section 12.1. If Landlord does not respond Annex B to the request within twenty Debt Financing Commitment, so long as, in the case of any termination or reduction pursuant to such provisions, (20i) Business DaysAcquiror provides Verizon with reasonable advance written notice of its intent to terminate or reduce such commitments, the request (ii) after giving effect to such termination or reduction Acquiror shall be deemed approved. In the event Tenant assigns all or maintain available cash, committed financing (including under any portion of Tenant’s Interest Debt Financing Commitment) and available capacity under its existing revolving credit facilities sufficient in the aggregate to secure a loan permitted under this Section 14.2enable Acquiror and the Tower Operator to consummate the transactions contemplated hereby, then including payment of the following shall apply:
Consideration and fees and expenses of Acquiror relating to the transactions contemplated hereby and (aiii) Landlord will enter into a Lender Recognition Agreement with prior to such termination or reduction, Acquiror supplies written documentation reasonably satisfactory to the Leasehold Mortgagee;Verizon Parties evidencing such available cash, committed financing and available capacity.
(b) The Landlord Acquiror and the Tower Operator acknowledge and agree that the receipt of the Debt Financing is not a condition to the consummation of the Initial Closing or the other transactions contemplated by this Agreement and the Collateral Agreements, and that, except as otherwise expressly provided herein, the failure to obtain the Debt Financing shall not be required in any way relieve Acquiror and the Tower Operator of their obligations to sign any Trust Deed consummate the Initial Closing or the Note, or otherwise become obligated thereunder;other transactions contemplated by this Agreement and the Collateral Agreements.
(c) No Subject to any termination or reduction in accordance with Section 9.11(a) and to the extent some or all of the proceeds of the “Bank Financing”, “Equity Offering” or the “Notes Offering” described in Annex B to the Debt Financing Commitment are not available, Acquiror shall use commercially reasonable efforts to borrow under the “Facility” described in such lienAnnex B as required to consummate the transactions contemplated hereby, charge including payment of the Consideration and fees and expenses of Acquiror relating to the transactions contemplated hereby, on or encumbrance shall constitute a lien or encumbrance upon prior to the Landlord’s fee title Initial Closing Date on the terms and conditions 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 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;
Debt Financing Commitment including (i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee as though maintaining in effect and using commercially reasonable efforts to enforce the same had been performed by Tenant;
(j) The time available Debt Financing Commitment, including, subject to a Leasehold Mortgagee to initiate foreclosure proceedingssatisfaction of the conditions thereunder, using commercially reasonable efforts in good faith, to proceed with foreclosure proceedings, or to obtain possession seek specific performance of the leasehold interest shall be deemed extended by funding obligations 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;
parties thereunder, and complying with its obligations thereunder, (kii) If two or more Leasehold Mortgagees exercise their rights under this Lease, the Leasehold Mortgagee who would be senior in priority if there were satisfying on 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 timely basis all conditions to the institution of any proceedings to foreclose Debt Financing set forth 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 Debt Financing Commitment that such proceedings or negotiations are to be commenced, within Acquiror’s control and Landlord shall have the right, but not the obligation, within sixty (60iii) days after receiving of such notice to purchase the Trust Deed and the indebtedness which it secures at a purchase price equal to drawing 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 Debt Financing then available, in the event that Landlord shall be notified by the Leasehold Mortgagee within thirty conditions set forth in Section 10.1 and Section 10.2 have been satisfied (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 otherwise waived with, 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 required, 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%) consent of the fair market value of the Improvements at the time the loan is entered intoDebt Financing Sources).
Appears in 2 contracts
Sources: Master Agreement, Master Agreement (American Tower Corp /Ma/)
Financing. Tenant (a) 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 reasonably necessary, proper or advisable to arrange the Debt Financing as promptly as practicable on the terms and conditions described in the Debt Financing Commitment (provided that Parent and Merger Sub may seek replace or amend the Debt Financing Commitment to add lenders, lead 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 adversely impact or delay in any material respect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of the consummation of the transactions contemplated hereby), including using reasonable best efforts to (i) maintain in effect the Debt Financing Commitment, subject to the foregoing replacement and amendment rights, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Debt Financing set forth in the Debt Financing Commitment that are within their control (including by consummating the financing pursuant to the terms of the Equity Financing Commitment and by assisting in the syndication or marketing of the financing contemplated by the Debt Financing Commitment) and (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Financing Commitment or on other terms reasonably acceptable to Parent that would not adversely impact in any material respect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby. Subject to the terms and conditions contained herein and the satisfaction of the conditions set forth in Section 7.1, Sections 7.2(a) and 7.2(b) and the satisfaction or waiver of the conditions set forth in Section 7.3, at the Closing Parent shall use its reasonable best efforts to cause the lenders under the Debt Financing to fund the Debt Financing required to consummate the transactions contemplated hereby if the conditions to the Debt Financing Commitment are then satisfied. Without limiting Parent’s obligations under this Section 6.13, if any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not materially less beneficial to Parent and Merger Sub in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event but in no event later than the Termination Date. 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 reasonably current basis of the status of its efforts to finance arrange the Improvements Debt Financing and provide copies of all documents related to refinance the Improvements from time Debt Financing (other than any ancillary documents subject to confidentiality agreements) to the Company. Notwithstanding the foregoing, compliance by Parent with this Section 6.13(a) shall not relieve Parent of its obligation to consummate the transactions contemplated by this Agreement whether or not the Debt Financing is available.
(b) Prior to the Closing, the Company shall provide to Parent and Merger Sub, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause the respective officers, employees and advisors, including legal and accounting, of the Company and its Subsidiaries to, provide to Parent and Merger Sub all cooperation reasonably requested by Parent that is reasonably necessary or customary in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the business or operations of the Company and its Subsidiaries), including (i) participating in a reasonable or customary number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) using commercially reasonable efforts to assist with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents necessary or customary in connection with the Financing, (iii) using commercially reasonable best efforts to furnish Parent and Merger Sub as promptly as reasonably practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent in connection with the Debt Financing, including information customarily included in private placement memoranda relating to private placements under Rule 144A promulgated under the Securities Act to consummate the offering(s) of debt securities contemplated by the Debt Financings Commitments at the time during the TermCompany’s fiscal year such offering(s) will be made as soon as such financial and other information becomes available, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act (other than Rule 3-10 of Regulation S-X, but including pro forma financial information and summary guarantor/non-guarantor financial information of the type customarily included in offering documents used in private placements under Rule 144A, and summary quarterly financial information and without giving effect to the executive compensation and related person disclosure rules related to SEC Release Nos. For 33-8732A; 34-54302A; IC-27444A), including audits thereof to the extent so required (which audits shall be unqualified) (all 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 information in this Lease, as security to any Institutional Lender clause (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectivelyiii), the “Trust DeedRequired Information”). Landlord, (iv) cooperating with and using reasonable best efforts to assist Parent in procuring accountants’ comfort letters and consents, legal opinions, surveys and title insurance and other customary documentation required by the Debt Financing Commitments, in each case as reasonably requested by Parent and, if reasonably requested by Parent or Merger Sub, (v) using commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within the time frame, and to the extent, the Company prepares such financial statements in the ordinary course of business, (vi) using reasonable best efforts to assist Parent in procuring the execution and delivery, as of the Effective Time, by the officers of the Surviving Corporation and its Subsidiaries of any customary pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the Chief Financial Officer of the Surviving Corporation or any Subsidiary with respect to solvency matters) and otherwise reasonably facilitating, to the extent reasonably requested by Parent, the pledging of collateral (including cooperation, to the extent reasonably requested by Parent, in connection with the pay-off of existing indebtedness and the release of related Liens), (vii) taking all actions to the extent reasonably requested by Parent necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s written approval current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, and (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent in connection with the consummation of the Debt Financing immediately following the Effective Time; provided that none of the Company or denial any of its Subsidiaries shall be provided required to Tenant within twenty (20) Business Days of Tenant’s written request, which shall contain pay any commitment or other similar fee or incur any other cost or expense that is not simultaneously reimbursed by Parent in connection with the information regarding the assignee’s financial strength, reputation and experience delineated in Section 12.1. If Landlord does not respond Debt Financing prior to the request within twenty (20) Business Days, the request shall be deemed approvedEffective Time. In the event Tenant assigns that prior to February 15, 2008 (x) all or any portion of Tenant’s Interest the Debt Financing structured as high yield financing has not been consummated, (y) all closing conditions contained in ARTICLE VII shall have been satisfied or waived (other than the delivery of the officer certificates to secure a loan permitted under be delivered at the Closing referred to in Sections 7.2(a), 7.2(b), 7.3(a) and 7.3(b)) and the Closing shall not have occurred 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 in all material respects on the terms and conditions described in the Debt Commitment Letters (or described in replacements thereof on terms and conditions no less favorable to Parent and Merger Sub or alternative financing therefor), then Parent shall use reasonable best efforts to cause the following lenders under such bridge facility to fund proceeds of such bridge financing (or replacement or alternative financing) to be used to replace such privately offered note financing no later than the final day of the Marketing Period. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable documented out of pocket costs and expenses incurred by the Company or its Subsidiaries in connection with such cooperation and shall apply:
(a) Landlord will enter into a Lender Recognition Agreement indemnify and hold harmless the Company, its Subsidiaries and their respective representatives from and against any and all liabilities, losses, damages, claims, expenses, interest, judgments and penalties suffered or incurred by them in connection with the Leasehold Mortgagee;
arrangement of the Debt Financing and any information utilized in connection therewith (b) The Landlord shall not be required to sign any Trust Deed other than information provided by the Company or the Note, Subsidiaries in accordance with the terms hereof). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing; provided that such logos are used solely in a manner that is not intended to or otherwise become obligated thereunder;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.
(c) No For purposes of this Agreement, “Marketing Period” shall mean the first period of 25 consecutive days after the Initiation Date (A) throughout and on the last day of which (1) Parent and its Financing sources shall have the Required Information and (2) nothing has occurred and no condition exists that would cause any of the conditions set forth in Sections 7.2(a) and 7.2(b) (other than the receipt of the certificates to be delivered at the Closing referred to therein) to fail to be satisfied assuming the Closing were to be scheduled for any time during such lien25-consecutive-day period, charge or encumbrance shall constitute a lien or encumbrance upon and (B) throughout and on the Landlord’s fee title in the Premises or their reversionary interest in the Improvements;
(d) Any interest in the Premises last day of which the Trust Deed establishes conditions set forth in a trustee, and Section 7.1 shall be satisfied; provided that (w) the Marketing Period shall end on any lien earlier date that is the date on which it creates, shall expire the Debt Financing is consummated; (x) if the Marketing Period would not end on or before the date of expiration of this Lease;
(e) The Trust Deed imposes no financial obligations on the Landlordprior to August 17, 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 Lease2007, the Leasehold Mortgagee who Marketing Period shall commence no earlier than September 3, 2007, if the Marketing Period would be senior in priority not end on or prior to November 16, 2007, the Marketing Period shall commence no earlier than November 26, 2007 and if there were a foreclosure the Marketing Period would not end on or prior to December 20, 2007, the Marketing Period shall prevail;
commence no earlier than January 2, 2008; (ly) This Lease the “Marketing Period” shall not be materially modified, amended or surrendered (except upon termination pursuant deemed to this Lease) without the prior written consent of each Leasehold Mortgagee;
(m) The Trust Deed shall provide thathave commenced if, prior to the institution completion of the Marketing Period, (A) Ernst & Young LLP shall have withdrawn its audit opinion with respect to any financial statements contained in the Required Information, in which case the Marketing Period will not be deemed to commence at the earliest unless and until a new unqualified audit opinion is issued with respect to the consolidated financial statements for the applicable periods by Ernst & Young LLP or another independent registered accounting firm reasonably acceptable to Parent, (B) the Company shall have announced any intention to restate any of its financial information included in the Required Information or that any such restatement is under consideration or may be a possibility, in which case the Marketing Period will not be deemed to commence at the earliest unless and until such restatement has been completed and the Company’s SEC Reports have been amended or the Company has announced that it has concluded that no restatement shall be required in accordance with GAAP or (C) the Company shall have been delinquent in filing any report with the SEC, in which case the Marketing Period will not be deemed to commence at the earliest unless and until all such delinquencies have been cured; and (z) if the financial statements included in the Required Information that is available to Parent on the first day of any proceedings such 25-consecutive-day period would not be sufficiently current on any day during such 25-consecutive-day period to foreclose permit (i) a registration statement using such financial statements to be declared effective by the Trust Deed or of negotiations to accept an assignment in lieu SEC on the last day of the foreclosure 25-consecutive-day period or (ii) the Company’s independent registered accounting firm to issue a customary comfort letter to purchasers (in accordance with its normal practices and procedures) on the last day of the Trust Deed25-consecutive-day period, then a new 25-consecutive-day period shall commence upon Parent receiving updated Required Information that would be sufficiently current to permit the holder or beneficiary thereof shall notify Landlord actions described in writing that such proceedings or negotiations are to be commenced, (i) and Landlord shall have (ii) on the right, but not the obligation, within sixty (60) days after receiving last day 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 destruction25-consecutive-day 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 (ReAble Therapeutics Finance LLC), Merger Agreement (Djo 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) Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions, and shall use reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain a loan the proceeds of the Financing on, in the case of clause (iii)(y) below, subject to finance clauses (A) through (C) of clause (iii) below, the Improvements 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 any related fee letter) as promptly as possible (taking into account the expected timing of the Marketing Period). Landlord’s written approval , but in any event 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 within twenty date upon which the Merger is required to be consummated pursuant to the terms hereof, including by using reasonable best efforts with respect to (20i) Business Dayscausing the Equity Investors to maintain in effect the Equity Commitment Letter, (ii) maintaining in effect the Debt Commitment Letter, (iii) negotiating and entering into on the Closing Date definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) (x) consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, the request shall “flex” provisions contained in any related fee letter) or (y) if available, on other terms that (A) are acceptable to Parent in its sole discretion, (B) would not reasonably be deemed approvedexpected to delay (taking into account the expected timing of the Marketing Period) or adversely affect the ability of Parent to consummate the transactions contemplated hereby and (C) would otherwise be permitted by Section 5.12(b), and (iv) taking into account the expected timing of the Marketing Period, satisfying (or, if reasonably required to obtain the Financing, seeking the waiver of) on a timely basis all conditions in the Debt Commitment Letter and the Definitive Agreements that are within the control of Parent or Merger Sub and complying with its obligations thereunder. In the event Tenant assigns that all conditions contained in the Debt Commitment Letter or the Definitive Agreements (other than the consummation of the Merger and other than the availability of the Cash Equity and those that by their nature are to be satisfied at the Closing) have been satisfied or waived, Parent and Merger Sub shall use their reasonable best efforts to cause the Lenders thereunder to comply with their respective obligations thereunder, including to fund the Debt Financing (including, subject to Section 8.7(c), by promptly commencing a litigation proceeding against any breaching Lender or other financial institution to compel such Lender or financial institution to provide its portion of Tenant’s Interest the Debt Financing or otherwise comply with its obligations under the Debt Commitment Letter or Definitive Agreements). Each of Parent and Merger Sub shall use its reasonable best efforts to secure comply with its respective obligations, and enforce its respective rights, under the Commitment Letters and Definitive Agreements in 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;timely and diligent manner.
(b) The Landlord Parent shall not, and shall not be required to sign any Trust Deed or the Notepermit Merger Sub 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: (i) permit any amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letters if such amendment, modification or waiver (A) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (B) reduces the amount of the Financing to an amount that would on the Closing Date be less than the Merger Amounts, (C) adversely affects in a material respect the ability of Parent to enforce its rights against other parties to the Commitment Letters or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Commitment Letters as in effect on the date hereof or (D) could otherwise reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement (taking into account the expected timing of the Marketing Period); or (ii) terminate any Commitment Letter or any Definitive Agreement unless such Commitment Letter or Definitive Agreement is replaced at such time with a new commitment letter or a new definitive agreement that would satisfy the preceding clause (i). Parent and Merger Sub shall promptly deliver to the Company copies of any amendment, modification, waiver or replacement of any Commitment Letter or any Definitive Agreement.
(mc) The Trust Deed In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, Parent and Merger Sub will (i) use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with Cash Equity and the available portion of the Debt Financing, to pay the Merger Consideration and the other Merger Amounts) as promptly as reasonably practicable from the same or other sources; provided, that, in no event shall Parent be required to, and in no event shall its reasonable best efforts be deemed or construed to require it to, obtain alternative financing that includes terms and conditions, taken as a whole, that are less favorable in any material respect to Parent and its Subsidiaries than the terms and conditions, taken as a whole, set forth in the Debt Commitment Letter as of the date hereof or would require it to pay any fees or agree to pay any interest rate amounts or original issue discounts, in either case, in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (taking into account any flex provisions applicable thereto contained in the Fee Letters) or which include any conditions to the consummation of such alternative debt financing that would reasonably be expected to make the funding of such alternative debt financing less likely to occur, than the conditions set forth in the Debt Commitment Letter as of the date hereof (and, when obtained, provide the Company with a true and correct copy of any new financing commitment for such alternative debt financing) and (ii) promptly (and in any event within two (2) Business Days) notify the Company of such unavailability and the reason therefor. For the purposes of this Agreement, the term “Debt Commitment Letter” shall be deemed to include any commitment letter (or similar agreement) with respect to any alternative or replacement financing arranged in compliance herewith (and any Debt Commitment Letter remaining in effect at the time in question). Parent and Merger Sub 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, Company with prompt oral 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 actual or threatened material breach, early termination, repudiation or material default by any party to the execution and/or recording any Commitment Letter or any Definitive Agreement, in each case, of same by Tenant, and shall accompany such notice with a true copy of such Trust Deed which Parent or Merger Sub obtain Knowledge and the Note secured thereby; and
(o) All insurance proceeds arising receipt of any written notice or other written communication from damage any Lender, Equity Investor or destruction other financing source with respect to any material breach, material default, early termination or repudiation by any party to any Commitment Letter or any Definitive Agreement of any provision thereof. Parent and Merger Sub shall keep the Company reasonably informed on a current basis of the Improvements status of its efforts to consummate the Financing. The foregoing notwithstanding, compliance by Parent and Merger Sub with this Section 5.12 shall be available for restoration thereof not relieve Parent or Merger Sub of their obligation to consummate the extent Tenant transactions contemplated by this Agreement whether or not the Financing is obligated under the terms of this Lease to restore the Improvements following such damage or destructionavailable.
(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: Agreement and Plan of Merger (At Home Group Inc.), Merger Agreement (At Home Group Inc.)
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 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 (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) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to arrange and obtain a loan the Financing on the terms and conditions described in the Financing Documents, including using reasonable best efforts to finance (i) negotiate and enter into the Improvements Debt Financing Agreement with respect to, and to refinance on the Improvements from time to time during terms and conditions contained in, the Term. For such purpose onlyterm sheet set out in the Debt Commitment Letter as promptly as reasonably practicable after the date hereof, Tenant shall have the right, with Landlord’s prior written approval, terms and conditions of which shall not be unreasonably withheldimpose new or additional conditions, conditioned or delayed, to assign all otherwise enhance 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 expand upon or mortgage (collectively, adversely modify 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 within twenty closing of the Debt Financing contained in the Debt Commitment Letter, (20ii) Business Daysmaintain in full force and effect the Financing Documents, (iii) satisfy on a timely basis all conditions in the request shall be deemed approvedDebt Financing Agreement, (iv) fully enforce its rights under the Debt Financing Agreement and (v) consummate the Financing at the Closing. In the event Tenant assigns all or any portion of Tenant’s Interest the Financing becomes unavailable on the terms and conditions contemplated in any of the Financing Documents, (x) Parent shall promptly so notify the Company, and (y) each of Parent and Merger Sub shall use its reasonable best efforts to secure arrange and obtain promptly any such portion from alternative debt financing (the “Alternative Financing”) in an amount sufficient, when added to the portion of the Financing that is available and the Company Cash Financing, to consummate the transactions contemplated by this Agreement on terms and conditions not less favorable, taken as a loan permitted whole, to Parent and Merger Sub (as determined in the reasonable judgment of Parent) than those in the Debt Commitment Letter or the Debt Financing Agreement. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and, if applicable, the Alternative Financing and shall deliver to the Company as promptly as practicable after such execution, true and complete copies of all Contracts or other arrangements (including fee letters), under which any such Alternative Financings is provided, except for any such Contracts or other arrangements that do not impact the conditionality of the Alternative Financing (the “Alternative Financing Agreements”). To the extent applicable, the obligations of each of Parent and Merger Sub in clauses (ii) to (v) under this Section 14.2, then the following 6.14(a) shall apply:
(a) Landlord will enter into a Lender Recognition Agreement apply 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 respect 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 Alternative Financing 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 destructionAlternative Financing Agreements.
(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 (Ren Jinsheng), Merger Agreement (Simcere Pharmaceutical Group)
Financing. Tenant may seek (a) Each of Holdco, Parent and Merger Sub 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 Financing on the terms and conditions described in the Financing Commitments, including by (i) maintaining in effect the Financing Commitments, (ii) satisfying on a loan timely basis all conditions applicable to finance Holdco, Parent and Merger Sub in the Improvements Financing Commitments that are within their control, including without limitation paying when due all commitment fees and other fees arising under the Financing Commitments as and when they become due and payable thereunder, and (iii) consummating the financing contemplated by the Financing Commitments at or prior to refinance the Improvements Effective Time. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, (x) Holdco, Parent and Merger Sub shall promptly notify the Company and (y) Holdco, Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain alternative financing from time alternative sources in an amount sufficient to time during consummate the Term. For Transactions with terms and conditions that are not less favorable in any material respect (as determined by Parent) than the terms and conditions set forth in the Debt Commitment Letter as promptly as practicable following the occurrence of 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 event (a “Leasehold Mortgagee”) which has advanced such funds to Tenant pursuant to a promissory note and a trust deed or mortgage (collectively, the “Trust DeedAlternative Financing”). Landlord’s written approval If any Parent Party becomes aware of the existence of any fact or denial event that would reasonably be expected to cause the Debt Financing to become unavailable on the terms and conditions contemplated by the Debt Commitment Letter, Holdco, Parent and Merger Sub shall be provided use their reasonable best efforts to Tenant within twenty either cure or eliminate such fact or event, or to arrange and obtain the Alternative Financing. The Parent Parties shall promptly provide a true and complete copy of each alternative financing agreement (20together with a redacted copy of any related fee letter) 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;Company.
(b) The Landlord None of Holdco, Parent nor Merger Sub shall not be required to sign any Trust Deed amend, alter or the Notewaive, or otherwise become obligated thereunder;
(c) No such lienagree to amend, charge alter 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 trusteewaive, 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 term 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 Commitments without the prior written consent of each Leasehold Mortgagee;the Company Board if such amendments, alterations or waivers would (i) reduce the aggregate amount of the Debt Financing, or (ii) impose new or additional conditions that would reasonably be expected to prevent or materially delay the ability of Holdco, Parent or Merger Sub to consummate the Merger; provided, that notwithstanding any other provision of this Agreement, Holdco, Parent and Merger Sub shall be entitled from time to time to (x) amend, restate, supplement, replace, substitute or otherwise modify, or waive any of its rights under, the Financing Commitments and/or replace or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources, subject to clauses (i) and (ii) above, and (y) amend, restate, supplement, replace, substitute or otherwise modify the Debt Commitment Letter for the purposes of adding agents, co-agents, lenders, managers, co-managers, arrangers, bookrunners or other Persons that have not executed the Debt Commitment Letter as of the date hereof so long as such amendment, restatement, supplement, replacement substitution or modification is otherwise in compliance with this Section 6.14(b). The Parent Parties shall promptly notify the Company of (i) the expiration or termination of any Financing Commitment, (ii) any breach of any material provisions of any of the Financing Commitments by any party thereto or (iii) any refusal by the parties to the Financing Commitments to provide the full financing contemplated by the Financing Commitments.
(mc) The Trust Deed Holdco, Parent and Merger Sub acknowledge and agree that the obtaining of the Financing (including any Alternative Financing) is not a condition to the Closing, and reaffirms its obligation to consummate the Merger and the other transactions contemplated hereby, irrespective and independent of the availability of the Financing, subject to the applicable conditions set forth in Article VII and the requirements of Section 1.02.
(d) Prior to the Effective Time, the Company agrees to use reasonable best efforts to provide, and shall provide thatcause each Subsidiary of the Company and each of their respective officers, employees and representatives to use reasonable best efforts to provide, to Holdco, Parent and Merger Sub (at Parent’s sole cost and expense), all reasonable cooperation as may be reasonably requested by the Parent Parties or their Representatives in connection with the Debt Financing and any Alternative Financing, including, without limitation, (i) participating in a reasonable number of 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 with representatives of the Parent Parties and their Debt Financing and/or Alternative Financing sources, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda (including a public side version which does not contain non-publicly available information), prospectuses, rating agency presentations and similar documents reasonably requested by the Parent Parties or their Representatives 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 Alternative Financing and delivery of one or more customary representation letters), (iii) promptly furnishing the Parent Parties and their Debt Financing and/or Alternative Financing sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by the Parent Parties and their Debt Financing and/or Alternative Financing sources, including, without limitation, all financial statements and financial and non-financial information regarding the Company and its Subsidiaries as may be reasonably requested by the Parent Parties and of the type and form customary for the placement, arrangement and/or syndication of loans or distribution of debt contemplated by (or otherwise required as a condition to funding under) the Debt Commitment Letter (the information required to be delivered in this clause (iii), the “Required Information”), (iv) cooperating with advisors, consultants and accountants of the Parent Parties or their Debt 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 Subsidiary of the Company, including for the purpose of establishing collateral eligibility and values, (v) using reasonable best efforts to obtain accountants’ comfort letters and legal opinions as may be reasonably requested by the Parent Parties, (vi) executing and delivering any pledge and security documents, commitment letters, underwriting or placement agreements or other definitive financing documents conditioned upon Closing, or other ancillary documentation including certificates, legal opinions or documents as may be reasonably requested by the Parent Parties or their Representatives (including a certificate of the chief financial officer of the Company or any borrower Subsidiary of the Company with respect to solvency matters) or otherwise facilitate the pledging of collateral, the delivery of pay-off letters and other cooperation in connection with the pay-off of existing Indebtedness and release of all related Liens, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing and/or any Alternative 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 (B) establishing bank and other accounts (including escrow accounts), blocked account agreements and lock box arrangements in connection with the foregoing, provided that such accounts, agreements and arrangements shall not become active or take effect until the Effective Time, (viii) entering into one or more credit or other agreements on terms satisfactory to the Parent Parties in connection with the Debt Financing and/or any Alternative Financing immediately prior to the institution Effective Time, provided that such agreements and arrangements shall not become active or take effect until the Effective Time, (ix) furnishing Holdco, Parent, Merger Sub and its Representatives promptly with all documentation and other information required with respect to the Debt Financing and/or any Alternative Financing under applicable “know your customer” and anti-money laundering rules and regulations and (x) furnishing Holdco, Parent, Merger Sub and its Representatives promptly upon its request with a list of contractual arrangements existing as of a date specified by Holdco, Parent, Merger Sub or its Representative pursuant to which the Company has an obligation to sell, lease, license, surrender, transfer, lend or otherwise dispose of such assets, in reasonable details and furnishing Holdco, Parent, Merger Sub and its Representatives such supporting documents requested thereby.
(e) The Company will take all corporate actions reasonably necessary to permit the consummation of the Debt Financing and/or any Alternative Financing, including without limitations the execution and delivery of any proceedings other certificates, instruments or documents, and to foreclose permit the Trust Deed or of negotiations to accept an assignment in lieu of proceeds thereof, together with cash at the foreclosure of the Trust DeedCompany and its Subsidiaries, 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 made available to the full amount then owing under said Trust DeedCompany on the Closing Date to consummate the Merger. The Company shall promptly notify Parent if any information furnished by the Company or any of its Subsidiaries pursuant to this Section 6.14(c) is or becomes inaccurate, incomplete or misleading in any material respect. Neither the Company nor any of its Subsidiaries shall be required to pay any commitment fee or similar fee or incur any liability with respect to the Debt Financing or any Alternative Financing prior to the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing and/or any Alternative Financing. Parent shall, promptly upon request by the Company, reimburse (or cause the applicable borrowers to reimburse) the Company for all reasonable and documented out-of-pocket costs and expenses (including accrued interest, reasonable attorneys’ fee for fees) incurred by the holder Company or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.14(d) and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any Improvementsand all liabilities or losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing or Alternative Financing and any information used in connection therewith (except with respect to any information provided by or on behalf of the Company or any of its Subsidiaries), including but not limited to construction loansexcept in the event such liabilities or losses arose out of or result from the willful misconduct of the Company, long term loans and refinancing permitted by the terms its Subsidiaries or any of their respective Representatives.
(f) Nothing in this Section 6.14 or any other provision of this Lease Agreement shall contain require, and in no event shall the written agreement “reasonable best efforts” of Holdco, Parent or Merger Sub be deemed or construed to require, Holdco, Parent or Merger Sub to (i) seek 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 Equity Financing from a source other than the filing Sponsors or in any amount in excess of a notice of default pursuant to that contemplated by the California Civil Code Section 2924;
Equity Commitment Letter, (nii) Tenant shall give Landlord written notice of waive 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 term or destruction of the Improvements shall be available for restoration thereof to the extent Tenant is obligated under the terms condition of this Lease to restore the Improvements following such damage Agreement, or destruction(iii) commence any legal action or proceeding against any financing source.
(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 (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
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 (a) After the date hereof the Parent may seek add to obtain a loan to finance or replace the Improvements Existing Debt Financing Commitments with additional or replacement debt commitments (the “New Debt Financing Commitments,” and to refinance the Improvements from time to time during the Term. For such purpose only, Tenant shall have the right, together 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 (collectivelyExisting Debt Financing Commitments, the “Trust DeedDebt Financing Commitments”), pursuant to which such lenders party thereto have committed, subject to terms thereof, to provide or cause to be provided the amounts set forth therein (the “New Debt Financing,” and together with the Existing Debt Financing, the “Debt Financing”) or equity financing commitments (the “New Equity Financing Commitments,” and together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which such parties have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing,” and together with the Debt Financing, the “Financing”). Landlord’s written approval or denial Parent 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 as promptly as practicable deliver to the request within twenty (20) Business DaysCompany true and complete copies of any commitment letters executed after the date hereof. Notwithstanding the foregoing, neither Parent nor Purchaser shall agree to or permit any replacement of, or amendment, supplement or other modification to be made to, or any waiver of any material provision or remedy under, the request Financing Commitments if such replacement, amendment, supplement, modification, waiver or remedy, would result in the amount available thereunder, together with Parent’s available cash, cash equivalents, fully committed and available lines of credit and definitive financing commitments, being less than the aggregate amount that is required to consummate the transactions contemplated hereby, adversely amends or expands the conditions to drawdown the Financing in any respect that would make such conditions materially less likely to be satisfied, that would reasonably be expected to delay the Purchase Time or the Effective Time, or is materially adverse to the interests of the Company and its Subsidiaries taken as a whole prior to the Effective Time. Parent and Purchaser shall be deemed approvedkeep the Company reasonably apprised of material developments relating to the Financing. In For the event Tenant assigns avoidance of doubt, failure 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 the Leasehold Mortgagee;
(b) The Landlord Financing shall not be required in and of itself relieve or alter the obligations of Parent and Purchaser 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 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 transactions contemplated hereby 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, terms contemplated 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 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: Agreement and Plan of Merger (LS Cable Ltd.), Merger Agreement (Superior Essex Inc)
Financing. Tenant (a) The Parent Entities 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 Financing on the terms and conditions described in the Financing Commitments, 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 (it being further understood and agreed that Parent may seek not amend, supplement, modify or waive any provision of Financing Commitments in any way that would reasonably be expected to adversely impact or delay in any material respect the ability of the Parent Entities to consummate the Merger in accordance with this Agreement or the Financing on the terms and conditions described in the Financing Commitments as in effect on the date hereof), (ii) timely negotiate all definitive documents evidencing the Financing, timely satisfy all conditions to the Financing and otherwise consummate the Financing at or prior to the Closing, and (iii) enforce the Financing Commitments. Notwithstanding anything to the contrary contained in this Agreement (including the foregoing provisions of this Section 6.10(a)), in no event shall the obligations of the Parent Entities hereunder be construed to require any Parent Entity or any of their Affiliates to enforce by litigation any of its rights pursuant to the Debt Financing Commitment or otherwise against any of Parent’s Debt Financing sources.
(b) Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to obtain a loan and consummate the Debt Financing. Parent shall furnish correct and complete copies of all definitive agreements entered into by Parent (or any of the Parent Entities) with respect to finance the Improvements Debt Commitment Letter to the Company promptly upon their execution, provided that the same pricing terms, fee amounts and to refinance economic terms redacted from 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 Debt Fee Letter 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 Company may be deemed approvedredacted from such definitive agreements. 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:
Debt Financing becomes unavailable on the terms and conditions (aincluding the 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 Debt Commitment Letter, the Parent Entities shall use 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 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 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 arrange to obtain possession of alternative financing from alternative sources in an amount sufficient to consummate the leasehold interest shall be deemed extended transactions contemplated by the number of days of delay occasioned by judicial restriction or application or operation of law against this Agreement (any such initiation or occasion by other circumstances beyond alternative Debt Financing, “Alternative Debt Financing”); provided, that any such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this LeaseAlternative Debt Financing 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 (mi) The Trust Deed shall provide thatreduce the aggregate amount of the Debt Financing available on the Closing Date or the length of the commitment therefor, prior from that contemplated by the Debt Financing Letter as in effect on the date hereof, (ii) expand upon the conditions precedent to the institution Debt Financing as set forth in the Debt Financing Letter as in effect on the date hereof or (iii) in any way reasonably be expected to adversely impact or delay in any respect the ability of any proceedings Parent and Sub to foreclose consummate the Trust Deed Merger in accordance with this Agreement or the Financing on the terms and conditions described in the Financing Commitments as in effect on the date hereof. Parent shall furnish correct and complete copies of negotiations all definitive agreements relating to accept an assignment the Alternative Debt Financing to the Company promptly upon their execution, provided that the pricing terms, fee amounts and economic terms contained in lieu the agreements governing the Alternative Debt Financing that correspond to such terms that were redacted from the Debt Fee Letter provided to the Company may also be redacted from such definitive agreements. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the foreclosure status of its efforts to obtain and consummate the Trust DeedAlternative Debt Financing. In the event Alternative Debt Financing is arranged in accordance with this Section 6.10(b), the holder or beneficiary thereof term “Financing Commitments” shall notify Landlord in writing that mean the commitment letter(s) for 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 destructionAlternative Debt 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, Merger Agreement (Lmi Aerospace Inc)
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 the Improvements Financing at or prior to the Effective Time, including using reasonable best efforts to (i) maintain in effect the Financing and the Financing Commitments, (ii) enter into definitive financing agreements with respect to the Financing and Financing Commitments, so that such agreements are in effect as promptly as practicable but in any event no later than the Effective Time, (iii) satisfy on a timely basis all Financing Conditions and (iv) in the event that the Financing Conditions have been, or upon funding would be, satisfied, cause the Debt Financing Sources to fund the full amount of the Financing. Parent and Merger Sub shall deliver to the Company true, complete and correct copies of the Financing Commitments and shall keep the Company fully informed of material developments in respect of the financing process relating thereto as reasonably requested by the Company from time to time during time. Prior to the Term. For such purpose onlyClosing, Tenant shall have the right, with Landlord’s prior written approval, which Parent and Merger Sub shall not be unreasonably withheldagree to, conditioned or delayedpermit, to assign all any amendment or part modification of, or waiver under, or any supplement, assignment, substitution or replacement 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 the Financing Commitments 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 other documentation relating to the request within twenty (20) Business DaysFinancing, the request shall be deemed approved. In the event Tenant assigns all or any portion of Tenant’s Interest to secure a loan except as expressly 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 (respectively5.13(b) or reversionary interest Section 5.13(c), in the Improvements or the Premises;
(g) Except as otherwise provided hereineach case, 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.
(mb) The Trust Deed Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub shall have the right from time to time to amend, supplement or otherwise modify, or waive any of its rights under, the Financing Commitments or any definitive agreements with respect to the Financing; provided that any such amendment, supplement or other modification to, or waiver of, any provision of or remedy under the Financing Commitments or such definitive agreements shall not (i) include any conditions that are in addition to, or in the aggregate more onerous than, the Financing Conditions or otherwise expand, amend or modify any of the Financing Conditions in a manner adverse to Parent, Merger Sub or the Company, (ii) cause or be reasonably expected to cause a delay in the ability of, or hinder or prevent or adversely impact the ability of, Parent and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement or enforce its rights against the Debt Financing Sources with respect to the Financing Commitments, (iii) reduce the aggregate amount of the Financing or (iv) release, repudiate, withdraw, consent to or otherwise result in the termination of the obligations of the Debt Financing Sources under the Financing Commitments (except for the replacement of the lenders in respect of the bridge facility described therein for up to 20% of the aggregate commitments in respect thereof as expressly contemplated by the Financing Commitments). In such event, the new commitment letters entered into in accordance with this Section 5.13(b) shall be deemed to be a part of the “Financing” and the commitment with respect thereto shall be deemed to be a part of the “Financing Commitments” for all purposes of this Agreement).
(c) If, notwithstanding the use of reasonable best efforts by Parent and Merger Sub to satisfy its obligations under Section 5.13(a), any of the Financing or the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated prior to the Closing, in whole or in part, for any reason, or all or any portion of the Financing shall otherwise become unavailable (or it shall become reasonably foreseeable that all or any portion of the Financing shall otherwise become available, including as a result of a breach or repudiation, or threatened or anticipated breach or repudiation, by any party to the Financing Commitments) Parent and Merger Sub shall (i) promptly notify the Company of such expiration, termination or other event and the reasons therefor, (ii) use reasonable best efforts to arrange for alternative financing (an “Alternative Financing”) on terms and conditions that are not less favorable to Parent and Merger Sub in the aggregate than the terms and conditions set forth in the Financing Commitments (which, together with other financial resources available to the Company, shall be in an amount sufficient to pay for the consummation of the transactions contemplated by this Agreement (including any refinancing or repayment of indebtedness of Parent, Merger Sub or the Company required in connection therewith) and which does not include any conditions that are in addition to, or in the aggregate more onerous than, the Financing Conditions) to replace the financing contemplated by such original commitments or agreements and (iii) use reasonable best efforts to obtain a new financing commitment that provides for such Alternative Financing and, promptly after execution thereof, deliver to the Company true, complete and correct copies of the commitment letter and fee letter (in redacted form removing only the fees payable on the Closing to a financing source) and related definitive financing documents related to such Alternative Financing relating to such commitment, in each case, as promptly as practicable following the occurrence of such event (and in any event no later than the Closing). Upon obtaining any commitment for any such Alternative Financing, such financing shall be deemed to be a part of the “Financing” and the commitment with respect thereto shall be deemed to be a part of the “Financing Commitments” for all purposes of this Agreement. Parent and Merger Sub shall provide thatthe Company with prompt notice of any breach by any party to the Financing Commitments of which Parent or Merger Sub becomes aware or any withdrawal, repudiation or termination of the Financing Commitments and, at the Company’s request, keep the Company informed on a current basis of the status of their efforts to obtain any Alternative Financing. Without limiting the foregoing, Parent and Merger Sub agree to notify the Company promptly, and in any event within three (3) Business Days, if at any time (A) any of the Financing Commitments shall expire, be withdrawn or be terminated for any reason, (B) any Debt Financing Source party to any of the Financing Commitments notifies Parent or Merger Sub that it no longer intends to provide financing on the terms set forth therein or (C) to the knowledge of Parent or Merger Sub, any party to any of the Financing Commitments is or is alleged to be in breach or default thereunder.
(d) [INTENTIONALLY OMITTED]
(e) In the period between the date hereof and the Closing, upon reasonable request of Parent and Merger Sub, the Company shall, and shall use reasonable best efforts to cause its Subsidiaries, Affiliates and Representatives to, reasonably cooperate with Parent and Merger Sub in connection with the Financing (for purposes of this Section 5.13(e), the “Financing” shall include any financing to be issued or incurred in lieu of the debt facilities described in the Financing Commitments and any registration by the Parent and/or its Subsidiaries under the Securities Act effected pursuant to the registration rights agreement, dated November 23, 2010, by and among Parent, certain Subsidiaries of Parent as guarantors, and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as representative of the Initial Purchasers (as defined therein)), including without limitation, in each case, at the reasonable request of Parent and Merger Sub, (i) preparation of all required financial statements relating to the Company and its Subsidiaries and provision of data relating to the Company and its Subsidiaries to allow Parent to prepare any required pro forma financial information in connection with the Financing; (ii) reasonably cooperating with the marketing efforts related to the Financing, including using reasonable best efforts to cause its Representatives to be available, during normal working hours and upon reasonable notice, to meet with the lender parties to the Financing Commitments and other prospective lenders and/or underwriters in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with rating agencies; (iii) the provision of pertinent information relating to the Company and its Subsidiaries relevant to the Financing reasonably requested by Parent and Merger Sub; (iv) reasonably assisting in the preparation of (A) customary offering documents, bank information memoranda, prospectuses and similar marketing documents, which contain all financial statements and other data relating to the Company and its Subsidiaries required to be included therein (which, in the case of financial information relating to the Company and its Subsidiaries, if required by applicable rules or regulations of the SEC or by the underwriters for any securities offering, 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) and all appropriate pro forma financial information of the Company and its Subsidiaries (which pro forma financial statements shall be prepared by Parent or its Representatives) in accordance with, or reconciled to, GAAP and prepared in accordance with Regulation S-X under the Securities Act, and all other data (including selected financial data) relating to the Company and its Subsidiaries that the SEC would require in a registered debt offering on Form S-1 under the Securities Act 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 debt offering on Form S-1 under the Securities Act and (B) materials for rating agency presentations; (v) using commercially reasonable efforts to cause its independent accountants, consistent with their customary practice, to provide reasonable assistance and cooperation to Parent, including accounting due diligence sessions, and providing consent to Parent to use their audit reports relating to the Company and reasonable assistance in facilitating the provision of customary “comfort” (including “negative assurance” comfort) by such independent accountants, in each case on customary terms and consistent with their customary practice in connection with financings similar to the Financing; (vi) reasonably cooperating with Parent and Merger Sub in providing customary information with respect to its property and assets reasonably required in connection with the Financing Conditions and reasonably facilitating the pledging of collateral and providing of guarantees with respect to the Financing Commitments upon Closing consistent with the terms of this Agreement and, subject to the occurrence of the Closing, taking corporate actions necessary to permit the consummation of the Financing; (vii) assisting Parent as requested thereby in seeking to obtain ratings from ▇▇▇▇▇’▇ Investors Service, Inc. and Standard and Poor’s Rating Services, a division of The McGraw Hill Companies, Inc., with respect to the borrower of the Financing and the senior secured facilities described in the Financing Commitments to be provided in connection therewith; and (viii) delivering to Parent for further distribution to the lenders under the Financing Commitments all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. PATRIOT ACT (Title III of Pub. L. 107 56 (signed into law October 26, 2011)). Parent and Merger Sub shall promptly, upon request by the Company, reimburse the Company for all documented out-of-pocket expenses incurred by the Company, its affiliates or its representatives in connection with such cooperation. The effectiveness of any definitive financing documentation executed by the Company, its affiliates or its representatives in connection with such cooperation shall be subject to the consummation of the Closing.
(f) Each of Parent and Merger Sub acknowledges and agrees that the Company and its Subsidiaries and their respective Representatives shall not, prior to the institution of Closing, have any proceedings responsibility for, or incur any liability to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure of the Trust Deedany Person under, the holder Financing, any Alternative Financing or beneficiary thereof shall notify Landlord any other financing that Parent and Merger Sub may raise in writing that such proceedings connection with the transactions contemplated by this Agreement or negotiations are any cooperation provided pursuant to be commencedthis Section 5.13. Parent and Merger Sub shall, on a joint and Landlord shall have several basis, indemnify and hold harmless the rightCompany and its Subsidiaries and their respective Representatives from and against any and all liabilities, but not the obligationlosses, 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 Deeddamages, including accrued claims, costs, expenses, interest, reasonable attorneys’ fee for the holder awards, judgments and penalties suffered or beneficiary, and applicable statutory costs and allowances if any foreclosure proceedings shall have commenced. All loan agreements incurred in connection with any ImprovementsTransaction Financing or other securities offering of Parent and/or its Subsidiaries or any assistance or activities provided in connection therewith; provided, including but however, that the foregoing shall not limited to construction loans, long term loans and refinancing permitted by apply 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 Company’s or its Subsidiaries’ or 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 representatives’ willful misconduct 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 destructiongross negligence.
(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 (Endo Pharmaceuticals Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
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) 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 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 Parent and Merger Subsidiary shall not be required use their reasonable best efforts to sign any Trust Deed or the Notetake, or otherwise become obligated thereunder;
(c) No such liencause to be taken, 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 actions and to do, or cause to be done, all rights of Landlord hereunder;
things necessary, proper or advisable 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;
Financing and the Financing Commitments, (jii) The time available negotiate and enter into definitive financing agreements with 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 Financing and Financing Commitments on terms and conditions (including the “flex” provisions) contemplated by the number Financing Commitments, so that such agreements are in effect as promptly as practicable after the date hereof but in any event no later than the Acceptance Time, (iii) cause their respective Representatives to cooperate in the preparation of days all documents (including offering memoranda, private placement memoranda, prospectuses and road show presentations, if any) and the making of delay occasioned all filings in connection with the Financing and the other transactions contemplated by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s control;
the Financing Commitments, and in executing and delivering all documents and instruments related to the Financing Commitments, (kiv) If two or more Leasehold Mortgagees exercise satisfy on a timely basis all conditions applicable to Parent and Merger Subsidiary in the Financing Commitments that are within its control and comply with its obligations thereunder, (v) enforce their rights under this Leasethe Financing Commitments in the event of a breach by the Financing Sources that impedes or delays the consummation of the Financing, including seeking specific performance of the parties thereunder and (vi) otherwise taking, or causing to be taken, all actions and doing, or causing to be done, all other things necessary, proper or advisable to consummate the Financing at or prior to the Acceptance Time. Parent and Merger Subsidiary shall provide to the Company copies of all final documents relating to the Financing and shall keep the Company fully informed of material developments in respect of the financing process relating thereto. Prior to the Acceptance Time, Parent and Merger Subsidiary shall not agree to, or permit, any amendment or modification of, or waiver under, the Leasehold Mortgagee who Financing Commitments or other final documentation relating to the Financing in a manner that (x) would be senior materially delay or prevent the Closing in priority if there were a foreclosure shall prevail;
any respect or (ly) This Lease shall not be materially modifiedis otherwise adverse to the Company in any material respect, amended or surrendered (except upon termination pursuant to this Lease) without the prior written consent of each Leasehold Mortgagee;the Company (which consent may be withheld in its sole discretion).
(mb) The Trust Deed In the period between the date hereof and the Acceptance Time, upon request of Parent and Merger Subsidiary, the Company shall, and shall provide thatcause its Subsidiaries to, reasonably cooperate with Parent and Merger Subsidiary in connection with the Financing, including, (i) preparation of all required financial statements relating to the Company and its Subsidiaries, (ii) reasonable participation in meetings and road shows, if any, (iii) the provision of information relating to the Financing reasonably requested by Parent and Merger Subsidiary, (iv) reasonable assistance in the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents of Parent and Merger Subsidiary and (v) after the Acceptance Time, facilitate the perfection of the lenders’ security interest in the collateral contemplated by the Financing; provided that nothing herein shall require such cooperation from any the Company or any of its Subsidiaries to the extent it would unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Parent and Merger Subsidiary shall promptly, upon request by the Company, reimburse the Company for all documented out-of-pocket expenses incurred by the Company, its Subsidiaries and their respective Representatives in connection with such cooperation.
(c) If, notwithstanding the use of reasonable best efforts by Parent and Merger Subsidiary to satisfy its obligations under Section 8.05(a), any of the Financing or the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated prior to the institution of Acceptance Time, in whole or in part, for any proceedings to foreclose reason, Parent and Merger Subsidiary shall (i) promptly notify 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 to purchase the Trust Deed expiration or termination and the indebtedness reasons therefor and (ii) promptly arrange for alternative financing (the “Required Financing Alternative”) from other sources to replace the financing contemplated by such expired or terminated commitments or agreements, which it secures at a purchase price equal Required Financing Alternative (x) shall not include any conditions that are more onerous than or in addition to the full amount then owing under said Trust Deed, including accrued interest, reasonable attorneys’ fee for conditions set forth in the holder or beneficiary, Financing and applicable statutory costs and allowances if any foreclosure proceedings (y) 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%) sufficient to pay for the consummation of the fair market value transactions contemplated by this Agreement
(d) Notwithstanding anything to the contrary contained in Section 8.05(a), at any time Parent or Merger Subsidiary may replace the Financing with alternative financing arrangements which (i) provide Parent and Merger Subsidiary with sufficient funds to consummate the transactions contemplated by this Agreement prior to or concurrent with the Acceptance Time and (ii) do not prevent or materially impair or delay the Closing (together with the Required Financing Alternative, the “Financing Alternative”). In the event Parent or Merger Subsidiary replaces the Financing with any Financing Alternative, the terms of Section 8.05(a) shall no longer apply with respect to the Improvements at Financing, but shall thereafter apply with respect to the time the loan is entered intoFinancing Alternative.
Appears in 2 contracts
Sources: Merger Agreement (MediaMind Technologies Inc.), Merger Agreement (DG FastChannel, 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 (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 (a) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions reasonably necessary to consummate and obtain the Financing on substantially the terms and conditions described in the Commitment Letter, as adjusted by the Agreed Marketing Terms, if any, including reasonable best efforts to (i) maintain in effect the Commitment Letter and, if entered into prior to the Closing, the definitive documentation with respect to the Financing contemplated by the Commitment Letter (including “flex” provisions contained therein) (the “Definitive Financing Agreements”), (ii) negotiate and execute Definitive Financing Agreements on terms and conditions contemplated by the Commitment Letter (including any “flex” provisions in connection therewith), as adjusted by the Agreed Marketing Terms, if any, and, upon execution thereof, deliver a copy thereof to the Company, (iii) satisfy on a timely basis all conditions applicable to Parent and its Subsidiaries in the Commitment Letter and Definitive Financing Agreements that are within its control and comply with its obligations thereunder, and not take any action that would prevent the availability of the Financing, (iv) seek to obtain enforce its rights under the Commitment Letter and Definitive Financing Agreements in the event of a loan breach or failure to finance fund by the Improvements financing sources that materially impedes or materially delays Closing, including by seeking specific performance against, the parties thereto (including the Commitment Party under the Commitment Letter). In the event that all conditions to the Financing have been satisfied, or upon funding will be satisfied, Parent shall use its reasonable best efforts to cause the lenders and the other Persons providing such Financing to refinance fund on the Improvements Closing Date (including by seeking specific performance to cause such lenders and other Persons to fund such Financing) the portion of the Financing required to consummate the Merger and the transactions contemplated by this Agreement. 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 or denial shall be provided to Tenant within twenty (20) Business Days of Tenant’s written requestDefinitive Financing Agreements, 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 and/or substitute other debt or 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 or Definitive Financing Agreements that amends the Financing and/or substitution of all or any portion of the Financing 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) be reasonably expected to 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. Parent shall be permitted to reduce the amount of Financing under this Section 14.2the Commitment Letter or Definitive Financing Agreements in its reasonable 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 Subsidiary, including cash on hand and marketable securities of Parent, the Company and their respective Subsidiaries, to consummate the Merger and the other transactions contemplated by this Agreement (bincluding the payment of any Required Amounts), and provided, further, that such reduction shall not (A) The Landlord 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) be reasonably expected to prevent or materially impede or materially delay the availability of such reduced Financing and/or the consummation of the Merger and the transactions contemplated by this Agreement. 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, in each case, on the terms and conditions (including any “flex” provisions in connection therewith) contemplated in the Commitment Letter, as adjusted by the Agreed Marketing Terms, if any, and such portion is reasonably required to consummate the Merger and the other transactions contemplated by this Agreement (including the payment of any Required Amounts), Parent shall use its reasonable best efforts to arrange and obtain as promptly as practicable following the occurrence of such event alternative financing from the same and/or alternative financing sources in an amount sufficient to consummate the Merger and the other transactions contemplated by this Agreement (including the payment of any Required Amounts), upon terms and conditions (including any “flex” provisions) not materially less favorable, in the aggregate, to Parent than those in the Commitment Letter, as adjusted by the Agreed Marketing Terms, if any, and, if obtained, will provide the Company with a copy of the documentation with respect to such alternative financing. Parent shall give the Company prompt oral and written notice (but in any event not later than 48 hours) after Parent becoming aware (i) of the occurrence of any material breach by any party to the Commitment Letter or Definitive Financing Agreements or of any condition not likely to be satisfied, (ii) of any termination or waiver, amendment or other modification of the Commitment Letter, (iii) that any of the Financing Parties no longer intends to provide the Financing or (iv) that any portion of the Financing is not available to consummate the Merger. Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange, obtain and/or consummate the Financing and shall provide copies of the principal documents related to the Financing (excluding fee letters and engagement letters, except to the extent that such documents contain any conditions to funding or “flex” provisions (excluding provisions related solely to fees and economic terms (other than covenants) agreed to by the parties)) on a periodic basis of no less frequently than once a month and as may otherwise be reasonably requested by the Company. In the event that Parent commences an action to seek specific performance to enforce its rights under the Commitment Letter or the Definitive Financing Agreements and/or cause the financing sources to fund the Financing (any such action, a “Financing Action”), Parent shall (x) keep the Company reasonably informed of the status of the Financing Action and (y) at the reasonable request of the Company, make Parent’s employees and legal advisors reasonably available to discuss the status of, and material developments with respect to, the Financing Action (subject in all cases to preserving all legal privileges). For the avoidance of doubt, the syndication of the Financing to the extent permitted by the Commitment Letter shall not be required deemed 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 Landlordviolate Parent’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 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 (RiskMetrics Group Inc), Merger Agreement (MSCI 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 (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 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)
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 Purchaser may, at its option, obtain one or more financing commitment letters (each, a Lender Recognition Agreement with "Commitment Letter") in a customary form that provide for all or a portion of the Leasehold Mortgagee;amount of proceeds as contemplated by the Debt Financing Letter as in effect on the date hereof; provided that the aggregate amount of proceeds from the Debt Financing Letter (including any Commitment Letter) shall provide for at least the same amount of proceeds to Purchaser as the Debt Financing Letter as in effect on the date hereof. Any Commitment Letter shall include a termination date not earlier than the one-year anniversary of the date of execution of this Agreement. Any Commitment Letter shall be made by some or all of the lenders that are parties to the Debt Financing Letter as in effect on the date hereof or by another national financial institution of similar repute of the lenders that are party to the Debt Financing Letter as in effect on the date hereof.
(b) The Landlord Purchaser agrees to notify Seller if, at any time prior to the Closing Date, (i) the Debt Financing Letter shall, to the extent applicable, expire or be revoked or otherwise terminated for any reason or (ii) any financing source that is a party to the Debt Financing Letter notifies Purchaser that such source no longer intends to provide financing to Purchaser. Purchaser shall use its reasonable best efforts to remedy any matter referred to in clause (i) or (ii) of the immediately preceding sentence as soon as reasonably practicable; provided that Purchaser shall not be required to sign enter into any Trust Deed financing commitments or the Noteunderstandings in an aggregate amount materially different, or otherwise become obligated thereunder;on terms less beneficial to Purchaser in any material respect, than those set forth in the term sheets attached to the Debt Financing Letter as in effect on the date hereof.
(c) No such lien, charge or encumbrance shall constitute If Purchaser has obtained a lien or encumbrance upon Commitment Letter and 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 Closing has not occurred 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 termination of such claimCommitment Letter, acquire any greater rights than Tenant then had under this Lease;
(h) The Trust Deed shall be subject Purchaser will use its reasonable best efforts to all conditionsobtain, 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 provide Seller with a copy of, a new Debt Financing Letter that provides for at least the same had been performed by Tenant;
(j) The time available amount of financing as such Commitment Letter and for other terms and conditions reasonably satisfactory to a Leasehold Mortgagee to initiate foreclosure proceedingsPurchaser and, 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 and conditions are materially less beneficial to restore Seller than those contained in the Improvements following such damage or destruction.
(p) No loan may be in an amount which exceeds seventy-five percent (75%) of term sheets attached to the fair market value of the Improvements at the time the loan is entered into.Debt Financing Letter,
Appears in 2 contracts
Sources: Stock Purchase Agreement (Enron Corp/Or/), Stock Purchase Agreement (Enron Corp/Or/)
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 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 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) Parent and Merger 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 to arrange, obtain and consummate the Debt Financing (including, if applicable, any Substitute Debt Financing) on or prior to the time at which the Closing is required to occur pursuant to Section 2.2, including using its reasonable best efforts to (i) (A) maintain in effect the Debt Letters and comply with all of their respective covenants and obligations thereunder, (B) negotiate and, assuming all conditions to Closing set forth in Section 8.1 and Section 8.2 have been satisfied, enter into and deliver definitive agreements with respect to the Debt Financing reflecting the terms and conditions contained in the Debt Letters (including any “flex” provisions), so that such agreements are in effect no later than the time at which the Closing is required to occur pursuant to Section 2.2, and (C) enforce their rights under the Debt Letters and (ii) satisfy (or obtain a loan to finance waiver of) on a timely basis all 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 conditions to the request within twenty Debt Financing and the definitive agreements related thereto that are in Parent’s (20or its Affiliates’) Business Days, the request shall be deemed approvedcontrol. In the event Tenant assigns that all conditions set forth in Article VIII have been satisfied or waived or, upon funding shall be satisfied or waived, and the Closing should otherwise occur pursuant to Section 2.2, Parent and its Affiliates shall use their reasonable best efforts to cause the Persons providing the Debt Financing (the “Debt Financing Parties”) to fund the Debt Financing at the Closing in accordance with the terms of the Debt Letters and the definitive agreements related to the Debt Financing.
(b) Parent shall keep the Company reasonably informed on a reasonably current basis of the status of the Debt Financing and material developments with respect thereto as may reasonably be requested by the Company. Without limiting the foregoing, Parent shall promptly (and in any event within two Business Days) after obtaining Knowledge thereof, give the Company written notice of any (i) material breach or material 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 such breach or default), (ii) receipt by Parent of any written notice of any threatened or actual withdrawal, repudiation, expiration or termination of the Debt Letters or the Debt Financing, (iii) material dispute or material disagreement between or among any parties to the Debt Letters or any definitive document related to the Debt Financing (other than ordinary course negotiations related to the Debt Financing) that Parent in good faith believes may lead to a Financing Failure or (iv) if for any reason Parent in good faith no longer believes it will be able to obtain all or any portion of Tenantthe Debt Financing necessary to consummate the Merger at the Effective Time. 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 the Company’s Interest prior written consent, permit any such amendment, supplement, modification, termination, assignment or 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 but excluding the exercise of any “flex” contemplated by the Debt Letters as in effect on the date hereof and any termination or reduction of the commitments in respect of any bridge facility pursuant to the express terms of the Debt Letters as in effect on the date hereof to the extent the amounts so terminated or reduced are replaced on a loan dollar-for-dollar basis by the issuance of debt securities contemplated by the applicable Debt Commitment Letter in lieu thereof), (B) impose new or additional conditions to the Debt Financing or otherwise expand, amend or modify any of the conditions to the Debt Financing or (C) otherwise expand, amend, supplement, modify, terminate, assign or waive any provision of the Debt Letters or Debt Financing, in a manner that in the case of clause (B) or clause (C) 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 Closing, (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 and to pay the Merger Amounts (each, a “Debt Financing Material Adverse Effect”) and provided, further, that the Debt Letters may be amended to add additional Debt Financing Parties who are not parties to the Debt Letters as of the date hereof, except as would reasonably be expected to have a Debt Financing Material Adverse Effect. Parent shall not, without Company’s prior written consent, permit any such amendment, supplement, modification, termination, assignment or waiver to be made to, or consent to or agree to any waiver of, any provision of or remedy under the Equity Commitment Letter. In the event that new commitment letters or fee letters are entered into in accordance with any amendment, supplement, other modification, termination, replacement, assignment or waiver of the Financing Commitment Letters permitted pursuant to this Section 7.3, such new commitment letters or fee letters shall be deemed to be a part of the “Equity Financing” or “Debt Financing”, as applicable, and deemed to be the “Equity Commitment Letter”, “Debt Commitment Letters”, “Fee Letters” and “Financing Commitment Letters”, as applicable, for all purposes of this Agreement. Parent shall promptly after execution thereof (and in any event no later than one Business Day thereafter) deliver to the Company true, correct and complete copies of any amendment, supplement, other modification, termination, replacement, assignment or waiver of the Financing Commitment Letters. If funds in the amounts set forth in the Debt Letters, or any portion thereof, become unavailable, Parent and Merger Sub shall, and shall cause its controlled Affiliates, including any applicable financing affiliates, as promptly as practicable following the occurrence of such event to, (x) notify the Company in writing thereof, (y) use their respective reasonable best efforts to obtain substitute financing (on terms and conditions that are not less favorable to Parent, taken as a whole, than the terms and conditions as set forth in the Debt Letters, taking into account any “market flex” provisions thereof), including from alternative sources, in an amount sufficient, when added to the portion of the Debt Financing that is available, to enable Parent to consummate the Merger and the other transactions contemplated hereby and to pay the Merger Amounts (the “Substitute Debt Financing”) and (z) use their respective reasonable best efforts to obtain a new financing commitment letter that provides for such Substitute Debt Financing and, promptly after execution thereof (and, in any event, no later than one Business Day thereafter), deliver to the Company true, complete and correct copies of the new commitment letter and the related fee letters (redacted in the same manner as permitted under Section 4.6(a)) and related Financing Documents with respect to such Substitute Debt Financing. Upon obtaining any commitment for any such Substitute Debt Financing, such financing shall be deemed to be a part of the “Debt Financing” and any commitment letter and related fee letters for such Substitute Debt Financing shall be deemed the applicable “Debt Commitment Letter”, “Fee Letter” and “Debt Letters”, as applicable, for all purposes of 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;Agreement.
(c) No such lienNotwithstanding anything contained in this Agreement to the contrary, charge (i) Parent and Merger Sub expressly acknowledge and agree that neither Parent’s nor Merger Sub’s obligations hereunder are conditioned in any manner upon Parent or encumbrance Merger Sub obtaining the Equity Financing, Debt Financing, any Substitute Debt Financing or any other financing and (ii) the Company acknowledges and agrees that a breach of the foregoing clauses (a) or (b) shall constitute a lien or encumbrance upon the Landlord’s fee title not result in the Premises or their reversionary interest in failure of a condition precedent to the Improvements;Company’s obligations under this Agreement if (notwithstanding such breach) Parent and Merger Sub are willing and able to consummate the Merger on the Closing Date.
(d) Any interest in the Premises which the Trust Deed establishes in a trusteeThe Company and its Subsidiaries shall use reasonable best efforts to, and shall use their reasonable best efforts to cause their Representatives to use their reasonable best efforts to, provide to Parent such customary cooperation as may be reasonably requested by Parent to assist Parent in arranging, obtaining and syndicating the Debt Financing (including any lien which it createsdebt securities contemplated by the applicable Debt Commitment 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 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:
(i) The Landlord will accept performance under this Lease by any Leasehold Mortgagee preparation and delivery to Parent and its Debt Financing Source Parties of the Financing Information that is Compliant as though promptly as reasonably practicable following Parent’s request (or requests) therefor, whether or not the same had Marketing Period has been performed by Tenantsatisfied (it being understood that Parent hereby acknowledges receipt of the financial statements, pursuant to clause (a)(i) and (a)(ii) of the definition thereof, for each of the three years in the period ended December 31, 2021 and for the fiscal quarter ended March 31, 2022);
(jii) The time available to a Leasehold Mortgagee to initiate foreclosure proceedingsassisting in preparation for and, to proceed with foreclosure proceedingsupon reasonable advance notice and at reasonable times, or to obtain possession having appropriate senior management of the leasehold interest shall be deemed extended Company and its Subsidiaries with appropriate seniority and expertise participate in, a reasonable number of meetings and calls (including customary one-on-one meetings with parties acting as lead arrangers, bookrunners or agents for, and prospective lenders of, the Debt Financing (including any debt securities contemplated by the number applicable Debt Commitment Letter)), rating agency presentations, road shows and due diligence sessions (including accounting due diligence sessions) and assisting Parent in obtaining ratings (but not any specific ratings) in respect of days the relevant borrower, issuer or parent guarantors under the Debt Financing (including any debt securities contemplated by the applicable Debt Commitment Letter) and public ratings in respect of delay occasioned any debt issued as part of the Debt Financing (including any debt securities contemplated by judicial restriction or application or operation of law against any such initiation or occasion by other circumstances beyond such Leasehold Mortgagee’s controlthe applicable Debt Commitment Letter);
(kiii) If two or more Leasehold Mortgagees exercise their rights under this Leaseassisting Parent and its potential financing sources in the preparation of (A) customary bank information memoranda (including a customary “public” and “private side” version), customary offering memoranda (including a preliminary and final offering memorandum that is suitable for use in a customary “high-yield road show”), customary offering documents and other customary disclosure and similar marketing documents for any of the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevailDebt Financing (including any debt securities contemplated by the applicable Debt Commitment Letter) and (B) customary materials for rating agency presentations for the Debt Financing (including any debt securities contemplated by the applicable Debt Commitment Letter);
(liv) This Lease shall not be materially modifiedusing reasonable best efforts to cause its independent registered public accounting firm (subject to any independence rules at such independent registered public accounting firm) to provide customary assistance with the due diligence activities of Parent and the Debt Financing Parties and the preparation of the customary disclosure and marketing materials referred to in clause (iii) above, amended or surrendered and using reasonable best efforts to cause its independent registered accounting firm (except upon termination pursuant subject to this Leaseany independence rules at such independent registered public accounting firm) without to provide customary consents to the prior written consent use of each Leasehold Mortgageeaudit reports in any disclosure and marketing materials relating to the Debt Financing (including any debt securities contemplated by the applicable Debt Commitment Letter) and related government filings and using reasonable best efforts to furnish the information necessary to enable the applicable accountants to deliver customary “comfort” letters (including “negative assurance” comfort);
(mA) The Trust Deed cooperating with Parent’s efforts in respect of the prepayment, repayment or redemption of, or any tender offer or change of control offer for, the Company Notes, including delivering customary notices of redemption in connection with the redemption of the Company Notes, and the prepayment or repayment of the Company Credit Facilities and the termination of any guarantees and security interests related thereto, in each case in connection with the Debt Financing, and cooperating with any back-stop, “roll-over” or termination of any existing letters of credit thereunder (and the release and discharge of all related liens and security interests), including by delivering the Payoff Letters, and (B) to the extent that all or a portion of the Company Notes will not be repaid, defeased or satisfied and discharged at Closing, using reasonable best efforts to cooperate with Parent’s efforts to comply with any covenants in the Company Indenture or Company Notes that require that the Company Notes be secured on a ratable basis with the Debt Financing (it being understood that any legal opinions required in connection therewith shall provide thatbe provided by Parent’s counsel);
(vi) executing and delivering customary authorization letters in connection with the disclosure and marketing materials relating to the Debt Financing, which authorization letters shall authorize the distribution of information relating to the Company and its Subsidiaries to prospective lenders and identify any portion of such information that constitutes material, nonpublic information regarding the Company or its Subsidiaries or their respective securities (in each case in accordance with customary syndication practices) and contain a representation that (to the extent accurate) the public-side version of any such marketing materials does not include material nonpublic information about the Company and its Subsidiaries or their respective securities;
(vii) executing and delivering as of, but not effective before, the Effective Time, customary Financing Documents as may be reasonably requested by Parent, including credit agreements, credit agreement amendments, high-yield purchase agreements, indentures, pledge and security documents, guarantees, customary officer’s certificates (other than a solvency certificate), instruments, filings and security agreements, required in connection with the Debt Financing, including delivering the Financing Deliverables;
(viii) assisting with the preparation of a customary borrowing base certificate relating to the borrowing base contemplated by the applicable Debt Commitment Letter, using reasonable best efforts to deliver applicable supporting information and documentation and assisting with, and providing reasonable cooperation with respect to, customary appraisals and field exams;
(ix) assisting with the delivery of customary officer’s certificates as of, but not effective before, the Effective Time, with respect to information provided by the Company and included in any preliminary or final offering memorandum used for a private placement of debt securities of the Company in connection with the Debt Financing;
(x) at least three Business Days prior to the institution of any proceedings Closing Date, providing all documentation and other information relating 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 Company and its Subsidiaries mutually agreed to be commenced, required by applicable “know your customer” and Landlord shall have anti-money laundering rules and regulations including the right, but not the obligation, within sixty (60) days after receiving of such notice to purchase the Trust Deed USA PATRIOT Act and the indebtedness which it secures at a purchase price equal Beneficial Ownership Regulation 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 extent reasonably requested 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 Parent at least 10 Business Days 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 therebyClosing Date; and
(oxi) All insurance proceeds arising from damage filing such reports under the securities laws as may be customary or destruction required for transactions of the Improvements shall be available for restoration thereof to type contemplated by this Agreement and 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 Com
Appears in 2 contracts
Sources: Merger Agreement (Domtar CORP), Merger Agreement (Resolute Forest Products 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, Merger Sub I and Merger Sub II shall, and shall use reasonable best efforts to cause their Representatives and Affiliates to, use their 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 Debt Financing on the terms and conditions set forth in the Commitment Letter (including the market flex provisions set forth in any Fee Letter) as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Commitment Letter until Merger I, Merger II and the other Transactions are consummated, (ii) timely negotiate and enter into definitive agreements with respect to the Debt Financing (the “Debt Financing Documents”) on the terms and conditions set forth in the Commitment Letter (and the market flex provisions set forth in any Fee Letter) so that the Debt Financing Documents are in effect as promptly as practicable but in any event no later than the Closing, (iii) satisfy or cause to be waived on a Lender Recognition Agreement timely basis all conditions applicable to Parent, Merger Sub I and Merger Sub II, their Representatives and their Affiliate set forth in the Commitment Letter or such definitive agreements and otherwise comply with their obligations thereunder; (iv) enforce Parent’s, Merger Sub I’s and Merger Sub II’s rights under the Commitment Letter and the Debt Financing Documents, (v) comply with Parent’s, Merger Sub I’s and Merger Sub II’s covenants and other obligations under the Commitment Letter and the Debt Financing Documents, (vii) fully pay (or cause to be fully paid) all commitment fees, ticking fees, other fees, costs, expenses and other amounts due and payable in connection with the Leasehold Mortgagee;Debt Financing; and (vi) upon the satisfaction or waiver of such conditions, consummate the Debt Financing.
(b) The Landlord Parent shall not be required amend, modify or waive, or seek or agree to sign amend, modify or waive (in any Trust Deed case, whether by action or inaction), any term of the Commitment Letter 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) Debt Financing Documents without the prior written consent of each Leasehold Mortgagee;the Company. Parent shall not, and shall not permit any of its Affiliates to, take any action not otherwise required under this Agreement that is a breach of, or would result in termination of, the Commitment Letter. Parent shall keep the Company reasonably informed of the status of its efforts to arrange the Debt Financing and shall promptly provide to the Company copies of all executed amendments, modifications, consents or waivers to or under the Commitment Letter and all executed and substantially final draft Debt Financing Documents. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice: (i) of any 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 any party to the Commitment Letter or any Debt Financing Documents of any provision of such Commitment Letter or Debt Financing Documents; (ii) any termination, cancellation or repudiation by any party to any of the Commitment Letter or Debt Financing Documents of which Parent becomes aware; (iii) of the receipt by Parent, Merger Sub I or Merger Sub II or any of their Affiliates or Representatives of any notice or other communication from any Person with respect to any (A) breach, default, termination or repudiation by any party to the Commitment Letter or any Debt Financing Documents of any provision thereof or (B) dispute or disagreement between or among any parties to the Commitment Letter or any Debt Financing Documents with respect to the Debt Financing; and (iv) if for any reason Parent, Merger Sub I or Merger Sub II or any of their Affiliates believes in good faith that (A) there is a dispute or disagreement between or among any parties to the Commitment Letter or any Debt Financing Documents with respect to the Debt Financing or (B) there is a reasonable likelihood that the Debt Financing will not be available for any reason on the terms, in the manner or from the sources contemplated by the Commitment Letter or any Debt Financing Documents.
(mc) The Trust Deed If the Debt Financing in an aggregate amount (together with cash and marketable securities on hand) at least equal to the aggregate Per Share Cash Consideration to be deposited with the Exchange Agent and all other amounts required to be paid pursuant to Article II, the Merger and the other transactions contemplated by this Agreement becomes unavailable on the terms and conditions contemplated by the Commitment Letter for any reason (such event, an “Original Financing Failure”), Parent shall provide thatpromptly notify the Company in writing of the Original Financing Failure and Parent shall use all reasonable efforts to arrange and obtain, as promptly as reasonably practicable, alternative financing from alternative sources (including debt, equity or other financing) in an amount, when added with available cash and marketable securities of Parent and its Subsidiaries, sufficient to consummate the transactions contemplated by this Agreement and to pay all related fees and expenses (the “Alternate Financing”), and to obtain one or more new financing commitment letters with respect to such Alternate Financing (collectively, the “New Commitment Letter”) and related fee letters, which shall replace the existing Commitment Letter and any existing Fee Letter; provided that any such Alternate Financing shall not (i) obligate the Company prior to the institution of Closing as a surety, guarantor or indemnitor or to extend credit to any proceedings person or (ii) impose any new or additional condition or otherwise expand any condition to foreclose draw and other terms that would reasonably be expected to affect the Trust Deed or of negotiations to accept an assignment in lieu of availability thereof at the foreclosure of the Trust Deed, the holder or beneficiary thereof Closing. Parent 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 promptly provide a true and complete copy of such Trust Deed New Commitment Letter and any related fee letter (as redacted to remove any fees, interest rates, “market flex” rights, and other economic terms, in each case that would not adversely affect the Note secured thereby; and
conditionality, enforceability, termination or aggregate principal amount of such alternative financing) in connection therewith to the Company. In the event a New Commitment Letter is obtained, (oi) All insurance proceeds arising from damage or destruction of any reference in this Agreement to the Improvements “Debt Financing” shall mean the financing contemplated by the Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Commitment Letter” shall be available for restoration thereof deemed to mean the New Commitment Letter and any fee letter provided in connection therewith, (iii) any reference in this Agreement to the “Fee Letter” shall be deemed to include any fee or other letter relating to the New Commitment Letter to the extent Tenant is obligated under then in effect, and (iv) any references to “Debt Financing Documents” shall be deemed to mean the definitive agreement with respect to the Debt Financing on the terms of this Lease to restore and conditions set forth in the Improvements following such damage or destructionNew Commitment Letter.
(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 (Flir Systems Inc), Merger Agreement (Teledyne Technologies Inc)
Financing. Tenant may seek (a) Subject to the terms and conditions of this Section 7.07, RMT Parent shall, and shall cause its Affiliates to, use reasonable best efforts to (i) cause the conditions and comply with the obligations that are set forth in the RMT Commitment Letter applicable to, and within the control of or that require the cooperation of, RMT Parent to be fulfilled (or waived, if deemed advisable by RMT Parent) in a timely fashion in accordance with its terms, (ii) maintain the RMT Commitment Letter in effect until the earlier of the initial funding of the RMT Financing or the date that the RMT 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 clauses (i) through (iv) of Section 7.07(d) (the “RMT Financing Agreements”) and (iv) if all conditions precedent under the RMT Commitment Letter or the RMT Financing Agreements have been satisfied, on the Closing Date, cause the RMT Lenders to fund the RMT Financing and RMT Borrower to consummate the RMT Financing Transactions if all conditions to Closing contained in Article VIII are, or on the Closing Date can reasonably be expected to be, satisfied or waived (by the applicable party that is the beneficiary of such condition). In the event any funds in the amounts set forth in the RMT Commitment Letter or the RMT Financing Agreements, or any portion thereof, become unavailable on the terms and conditions (including any applicable “flex” terms) contemplated in the RMT Commitment Letter or the RMT Financing Agreements, RMT Parent shall, and shall cause its Affiliates to use reasonable best efforts, subject to Section 7.07(d), to obtain a loan promptly any such portion from alternative sources, including on terms materially no less favorable, in the aggregate, to RMT Parent than those set forth in the RMT Commitment Letter (in each case as determined in the reasonable discretion of RMT Parent), in an amount sufficient, when added to the portion of the RMT Financing that is available, to finance the Improvements and to refinance RMT Financing Transactions (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 MortgageeRMT Alternative Financing”) and provide promptly to GPC a copy of any new financing commitment letter and any associated fee letters (solely in the case of any administrative agent fee letter, redacted in a customary manner solely with respect to the fees payable and economic terms (other than covenants) that are confidential, none of which has advanced redacted provisions would reduce the aggregate principal amount of such funds to Tenant pursuant to a promissory note and a trust deed RMT Alternative Financing, impose additional conditions with respect thereto, or mortgage otherwise affect the enforceability or availability of such RMT Alternative Financing) (collectively, the “Trust DeedAlternative RMT Commitment Letter”). Landlord’s written approval or denial shall ; provided that the terms of any such RMT Alternative Financing must be provided to Tenant within twenty (20) Business Days of Tenant’s written requestconsistent with the Intended Tax Treatment, 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 approvedas reasonably determined by GPC. In the event Tenant assigns any RMT Alternative Financing is obtained, notwithstanding anything herein to the contrary, any reference in this Agreement to “RMT Financing” shall include “RMT Alternative Financing,” any reference to “RMT Commitment Letter” shall include the “Alternative RMT Commitment Letter,” any reference to “RMT Lenders” shall include the financial institutions providing such RMT Alternative Financing, and any reference to “RMT Financing Agreements” shall include any definitive agreements with respect to the Alternative RMT Commitment Letter, and all obligations of RMT Parent pursuant to this Section 7.07 shall be applicable thereto to the same extent as RMT Parent’s obligations with respect to the RMT Financing. For the avoidance of doubt, if the Marketing Period has ended, the RMT Financing is available, and all conditions to the Closing set forth in Article VIII have been satisfied or waived or will be satisfied or waived at the Closing, RMT Parent shall take all actions within its control reasonably necessary to allow RMT Borrower to incur the indebtedness provided under the RMT Financing to consummate the RMT Financing Transactions.
(b) Subject to the terms and conditions of this Section 7.07, GPC and SpinCo shall, and shall cause their respective Affiliates to, use reasonable best efforts to (i) cause the conditions and comply with the obligations that are set forth in the SpinCo Commitment Letter applicable to, and within the control of or that require the cooperation of, GPC or SpinCo to be fulfilled (or waived, if deemed advisable by GPC or SpinCo) in a timely fashion in accordance with its terms, (ii) maintain the SpinCo Commitment Letter in effect until the earlier of the initial funding of the SpinCo Financing or the date that the SpinCo Financing Agreements (as defined below) become effective, (iii) negotiate definitive agreements with respect thereto, on terms and conditions acceptable to RMT Parent and contained therein (including the “market flex” provisions) or on such other terms acceptable to RMT Parent that would not be prohibited by Section 7.07(e) (the “SpinCo Financing Agreements” and, together with the RMT Financing Agreements, the “Financing Agreements”) and (iv) if all conditions precedent under the SpinCo Commitment Letter or the SpinCo Financing Agreements have been satisfied, cause the SpinCo Lenders to fund the SpinCo Financing prior to or substantially contemporaneously with the Distribution and to consummate the SpinCo Financing Transactions if all conditions to Closing contained in Article VIII are, or, on the Closing Date can reasonably be expected to be, satisfied or waived (by the applicable party that is the beneficiary of such condition). In the event any funds in the amounts set forth in the SpinCo Commitment Letter or the SpinCo Financing Agreements, or any portion thereof, become unavailable on the terms and conditions (including any applicable “flex” terms) contemplated in the SpinCo Commitment Letter or the SpinCo Financing Agreements, GPC and SpinCo shall, and shall cause their respective Affiliates to, in consultation with RMT Parent, use reasonable best efforts to cause SpinCo to obtain promptly any such portion from alternative sources, on terms acceptable to RMT Parent, in an amount sufficient, when added to the portion of the SpinCo Financing that is available, to finance the SpinCo Financing Transactions (the “SpinCo Alternative Financing” and, together with any RMT Alternative Financing, the “Alternative Financings” and each, an “Alternative Financing”) and provide promptly to RMT Parent a copy of any new financing commitment letter and any associated fee letters (the “Alternative SpinCo Commitment Letter”); provided that the terms of any such SpinCo Alternative Financing must be consistent with the Intended Tax Treatment, as reasonably determined by GPC. In the event SpinCo Alternative Financing is obtained, any reference in this Agreement to “SpinCo Financing” shall include “SpinCo Alternative Financing,” any reference to “SpinCo Commitment Letter” shall include the “Alternative SpinCo Commitment Letter,” any reference to “SpinCo Lenders” shall include the financial institutions providing such Alternative Financing, and any reference to “SpinCo Financing Agreements” shall include any definitive agreements with respect to the Alternative SpinCo Commitment Letter, and all obligations of GPC and SpinCo pursuant to this Section 7.07 shall be applicable thereto to the same extent as GPC’s and SpinCo’s obligations with respect to the SpinCo Financing. For the avoidance of doubt, if the SpinCo Financing is available and all conditions to the Closing set forth in Article VIII have been satisfied or waived or will be satisfied or waived at the Closing, SpinCo shall, and GPC shall cause SpinCo to, take all actions within its control reasonably necessary to cause SpinCo to incur the indebtedness provided under the SpinCo Commitment Letter or the SpinCo Financing Agreements to consummate the SpinCo Financing Transactions, including by executing and delivering to the SpinCo Lenders the SpinCo Financing Agreements and related certificates, instruments and documents contemplated thereby, which, in each case, shall be in form and substance satisfactory to RMT Parent.
(c) RMT Parent and GPC shall each give the other prompt written notice (i) of any material breach (or threatened 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 the Commitment Letters or the 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 Lenders, (iii) of the receipt of any written notice of any material dispute or disagreement between or among any of the parties to the Commitment Letters or the Financing Agreements, (iv) of any amendment or modification of, or waiver under, the Commitment Letters or the Financing Agreements to which such Person (or its Affiliate) is a party or (v) if for any reason either believes in good faith that it or its Affiliates will not be able to timely obtain all or any portion of Tenant’s Interest to secure a loan permitted under this Section 14.2the RMT Financing or SpinCo Financing, then as applicable, on the following shall apply:
terms and conditions and in the manner or from the sources (aincluding the RMT Alternative Financing and the SpinCo Alternative Financing, where applicable) Landlord will enter into a Lender Recognition Agreement with contemplated by the Leasehold Mortgagee;
(b) The Landlord shall not be required to sign any Trust Deed RMT Commitment Letter or the NoteSpinCo Commitment Letter, as applicable, or otherwise become obligated thereunder;
the RMT Financing Agreements or the SpinCo Financing Agreements, as applicable. RMT Parent and GPC shall keep one another informed upon reasonable request and in reasonable detail, as soon as reasonably practicable (cbut in any event within three Business Days upon receipt of such reasonable request) No such lien, charge or encumbrance shall constitute a lien or encumbrance upon of the Landlord’s fee title in the Premises status of their (or their reversionary interest in Affiliate’s) efforts to arrange the Improvements;RMT Financing and the SpinCo Financing, as applicable.
(d) Any interest Notwithstanding anything to the contrary set forth herein, RMT Parent may amend, modify, replace, waive or change any provision in the Premises which the Trust Deed establishes in a trustee, and RMT Commitment Letter or 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 RMT Financing Agreements; provided that any such initiation amendment, modification, replacement, waiver or occasion change must be consistent with the Intended Tax Treatment, as reasonably determined by other circumstances beyond such Leasehold Mortgagee’s control;
(k) If two or more Leasehold Mortgagees exercise their rights under this LeaseGPC; provided, the Leasehold Mortgagee who would be senior in priority if there were a foreclosure shall prevail;
(l) This Lease further, that RMT Parent shall not permit or agree to any such amendment, modification, replacement, waiver or change to be materially modified, amended made to the RMT Commitment Letter or surrendered (except upon termination pursuant to this Lease) any of the RMT Financing Agreements without obtaining the prior written consent of GPC, that would (i) change, amend, expand or modify the conditions precedent set forth therein, or impose new or additional conditions, in each Leasehold Mortgagee;
case in any manner that would reasonably be expected to prevent or materially delay the consummation of the RMT Financing, (mii) The Trust Deed shall provide thatreduce the aggregate cash amount of the RMT Financing such that the aggregate funds that would be available to RMT Parent upon the closing of the RMT Financing would not be sufficient to fund the RMT Financing Transactions, prior (iii) decrease the aggregate cash amount of the RMT Financing as set forth in the RMT Commitment Letter or the RMT Financing Agreements such that such aggregate amount is less than the aggregate cash amount to be funded upon the closing thereof as set forth in the RMT Commitment Letter as of the date hereof or (iv) amend or modify any other term or provision in a manner that would reasonably be expected to prevent, materially delay or materially impair the ability of RMT Parent and Merger Sub to consummate the transactions contemplated by this Agreement or adversely impact, in any material respect, the ability of RMT Parent to enforce its rights against the other parties to the institution of RMT Commitment Letter or any proceedings to foreclose the Trust Deed or of negotiations to accept an assignment in lieu of the foreclosure RMT Financing Agreements. Notwithstanding anything to the contrary set forth herein, RMT Parent may modify, supplement, or amend the RMT Commitment Letter or any of the Trust DeedRMT Financing Agreements, (x) to add lead arrangers, bookrunners, syndication agents, documentation agents, lenders or similar entities that have not executed the RMT Commitment Letter as of the date hereof and (y) to implement or exercise any market flex provisions provided in, the holder RMT Commitment Letter as in effect as of the date hereof or, subject to Section 7.07(a), as in effect as of the date that an Alternative RMT Commitment Letter becomes effective. In such event, the term “RMT Commitment Letter” as used herein shall be deemed to include the new or beneficiary thereof shall notify Landlord in writing that such proceedings or negotiations are to be commencedamended commitment letters (including all exhibits, schedules, and Landlord attachments thereto) and fee letters entered into in accordance with this Section 7.07(d), the term “RMT Financing” as used herein shall have the rightbe deemed to include any substitute financing obtained in accordance with this Section 7.07(d), 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 term “RMT Financing Agreements” shall be deemed to include the new or amended definitive agreements with respect to the full amount then owing under said Trust DeedRMT Financing entered into in accordance with this Section 7.07(d); provided, including accrued interesthowever, reasonable attorneys’ fee for that in the holder event any portion of the RMT Financing becomes unavailable on the terms and conditions contemplated in the RMT Commitment Letter or beneficiarythe RMT Financing Agreements, the second sentence of Section 7.07(a), and applicable statutory costs and allowances if any foreclosure proceedings not this Section 7.07(d), shall have commenced. All loan agreements in connection govern 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 any replacement financing to be obtained after any portion of the Leasehold Mortgagee that Landlord RMT Financing becomes unavailable as described therein. Promptly after the effectiveness thereof, RMT Parent shall be notified by the Leasehold Mortgagee within thirty (30) days deliver to GPC true and correct copies of any default by Tenant on any such loan all amendments, modifications, replacements, waivers 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 changes to the California Civil Code Section 2924;
(n) Tenant shall give Landlord written notice of any Trust Deed prior to RMT Commitment Letter and, after the execution and/or recording of same by Tenanteffective date thereof, 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 destructionRMT Financing Agreements.
(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 (Rhino SpinCo, Inc.), Merger Agreement (Genuine Parts Co)