Appears in 4 contracts

Sources: Triage Purchase Agreement (Alere Inc.), Triage Purchase Agreement (Quidel Corp /De/), Purchase Agreement (Alere Inc.)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser Parent each~~ conditions of this Agreement, AGCO 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~~ obtain ~~and to consummate~~ the Committed Financing (or taking into account any ~~Alternative Financing~~reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions ~~described~~ set forth in the Commitment Letter (including any “flex” provisions in the ~~flex~~ Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto~~), subject to any amendments or modifications thereto~~ ) as permitted by this Section ~~6.13(b)~~7.15(a) to be amended, ~~including using~~ modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced. (b) AGCO shall use its reasonable best efforts (taking into account the anticipated timing of the Closing Date and the Marketing Period) to (iA) maintain in effect the Commitment ~~Letter~~Letter in accordance with the terms and subject to the conditions thereof, provided that, AGCO may, without ▇▇▇▇▇▇▇’▇ consent, (iix) enter into other debt financing arrangements (any such debt financing, a “Permanent Financing” and, together with the Committed Financing, the “Available Financing”) and thereby reduce the amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto), (y) reduce and/or replace the amount of the Committed Financing by the net proceeds raised by AGCO and/or any of its Subsidiaries through any equity financing or asset sale and (z) reduce and/or replace the aggregate amount of the Committed Financing by the amount of Cash on hand available to AGCO, in the case of each of clauses (x), (y) and (z), to the extent that the remaining amount of the Committed Financing under the Commitment Letter (or definitive financing documents related thereto) after such reduction, taken together with Cash on hand, and available lines of credit, is no less than the Required Amount, (B) taking into account the expected timing of the Marketing Period, negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions contained in the Commitment Letter (including the “flex” provisions included in the Fee Letter) (or on such other terms that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms), (C) satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and, subject to satisfaction of all conditions to funding, to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (the “Committed Financing Sources”) and (D) enforce its rights under the Commitment Letter and any definitive agreements with respect thereto. Trimble acknowledges and agrees that AGCO shall not be required to consummate the Available Financing before the final day of the Marketing Period. (c) AGCO shall give Trimble prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which AGCO has Knowledge if such breach or default would result in a material delay of, or in any way limit, the availability of the Committed Financing, (y) of the receipt of any written notice or other communication, in each case from any Committed Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of any provisions of the Commitment Letter or definitive agreements relating to the Committed Financing if such breach, default, termination or repudiation would result in a material delay of, or in any way limit, the availability of the Committed Financing and (z) if at any time for any reason AGCO believes in good faith that it will not be able to obtain all or any portion of the Committed Financing on the terms and conditions, in the manner or from the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Trimble delivers to AGCO a written request, AGCO shall provide any information reasonably requested by Trimble relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence; provided that AGCO shall not be required to share any information with Trimble that is subject to attorney-client or other privilege if AGCO shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable (other than as a result of any reductions thereof permitted under Section 7.15(b)), or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter and Fee Letter, ~~Purchaser shall promptly (~~and ~~in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and~~ such portion is reasonably required to effect the Closing, AGCO shall use its reasonable best efforts to arrange ~~as promptly as practicable any such portion~~ and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources on in an amount at least equal to the unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 7.15(b)(A)), with terms and conditions not materially less favorable to AGCO (or its Subsidiaries), as determined in the ~~aggregate to Purchaser and its Affiliates~~ reasonable judgment of AGCO, than the terms and conditions set forth in the Commitment Letter and ~~that would not have~~ the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 7.15 be construed so as to require AGCO or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to AGCO, as determined in the ~~effects prohibited~~ reasonable judgment of AGCO, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing shall be permitted to be in the form of any such equity financing). AGCO shall deliver to Trimble true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to ~~amendment by Section 6.13(b) (~~which any such ~~financing, the “Alternative Financing”). Purchaser~~ alternative source shall ~~(A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1)~~ have committed to provide any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (cd) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance Trimble shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to ~~Purchaser~~ AGCO, and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of shall cause ▇▇▇▇▇▇▇’▇ Subsidiaries to use their respective reasonable best efforts to provide, ~~Seller~~ and shall use its reasonable best efforts to cause its and their respective Subsidiaries’ Representatives, to provide to AGCO, at AGCO’s sole expense, all cooperation reasonably requested by AGCO and that is necessary and customarily required for financings of the type contemplated by the Commitment Letter in connection with the Available Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include: (i) upon reasonable notice, participation by management and Representatives of Trimble, Company and their respective Subsidiaries (with appropriate seniority and expertise) in a reasonable number of meetings, road shows, presentations, conference calls, due diligence sessions, sessions with rating agencies and potential lenders and other customary syndication activities and reasonably cooperating with the marketing efforts of AGCO and the Financing Sources, in each case, in connection with the Available Financing, at reasonable times and locations to be mutually agreed; (ii) delivery to AGCO of the Required Information and other financial and other pertinent information regarding the Business, Company and their respective Subsidiaries in the possession of Trimble, the Company and their respective Subsidiaries and other assistance as may be reasonably requested by AGCO in the preparation of materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda and similar documents required in connection with the Available Financing (or any replacement thereof permitted hereunder), including the delivery of customary authorization and representation letters to the extent contemplated by or customary in the Available Financing and a supplement to or alternative version that does not include information that constitutes material non-public information regarding Trimble or the Business and similar documents required in connection with arranging the Available Financing and updating any Required Information provided to AGCO as may be necessary to consummate the Available Financing and for such Required Information to remain Compliant; (iii) to the extent reasonably requested by AGCO, (A) assisting in the preparation of, and executing and delivering, customary certificates or documents; provided, however, that (x) no obligation of the Company or any of its Subsidiaries under any such document shall be effective until the Closing other than in the case of the authorization and representation letters referred to in clause (ii) above, and (y) the directors, officers and managers of Trimble and its Subsidiaries shall not be required to deliver such certificates or adopt resolutions approving the financing documents, agreements and certificates in connection with the Available Financing unless AGCO shall have confirmed that such directors, officers and managers are to remain as directors, officers and managers of the Company and its Subsidiaries on and after the Closing and such resolutions, financing documents, agreements and certificates are contingent upon the occurrence of, or only effective as of, the Closing and (B) assisting AGCO with entering into arrangements to replace the guarantees, letter of credit and surety bond obligations in effect with respect to the Business; (iv) assisting with the discharge and termination of any Liens on the assets of the Business incurred in connection with any Indebtedness of Trimble and its Subsidiaries and required to be released pursuant to the terms hereof, including obtaining customary lien release letters and related termination filings; (v) no less than four (4) Business Days prior to the Closing Date, furnishing to AGCO and the Financing Sources all documentation and information as is reasonably requested in writing by the Financing Sources at least six (6) Business Days prior to the Closing Date about the Company or Trimble and its Subsidiaries that the Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and (vi) to the extent reasonably requested by AGCO, directing the auditors with respect to the Business to provide customary comfort letters (including “negative assurance” comfort and change period comfort) reasonably requested by AGCO with respect to financial information (including the historical Business information included in the pro forma financial information) of the Business included in any offering documents relating to the Committed Financing that consists of Rule 144A marketed debt securities in which the combined financial statements of the Business are included, and, if required, customary consents to the use of their ~~respective Affiliates or other Representatives~~ audit reports on the combined historical financial statements of the Business in any offering documents relating to the Available Financing in which the combined historical financial statements of the Business are included, in each case subject to such auditors’ customary policies and procedures and applicable auditing standards; provided, that neither Trimble nor any of its Subsidiaries shall (A) be required to pay any commitment or other similar fee, ~~provide~~ (B) have any ~~security~~liability or obligation under any loan agreement and related documents, ~~execute any document~~unless and until the Closing occurs (except the authorization and representation letters referred to in clause (ii) above), ~~make any representations, provide any indemnification or~~ (C) incur any other ~~expense or Liability~~ liability in connection with the Available Financing not contingent upon the occurrence of the Closing Date or ~~the cooperation contemplated by this Section 6.13(d),~~ (iiD) ~~none of~~ be required to take any action that will (x) conflict with or violate ▇▇▇▇▇▇~~, Seller~~ ▇’▇ or any of ~~their respective Affiliates~~ its Subsidiaries’ Organizational Documents (to the extent any provision creating such conflict was not created in contemplation of the Available Financing) or ~~other Representatives shall be required to provide~~ any ~~solvency opinion~~ Laws or ~~legal opinion or other opinion of counsel~~(y) result in the contravention of, or ~~any information~~ that ~~would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller,~~ would reasonably be expected to result in a violation ~~of Law~~ or ~~loss of attorney-client privilege~~breach of, ~~(iii) Purchaser shall promptly~~or a default under, ~~upon request by ▇▇▇▇▇▇~~ any Contract to which Trimble or ~~Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by~~ any of ~~them (including~~ its Subsidiaries is a party to the extent not entered into in contemplation of the provisions in this Section 7.15(d). Trimble hereby consents to the reasonable ~~attorneys~~use of its and its Subsidiaries’ ~~fees~~ trademarks and ~~other fees and expenses as incurred)~~ logos in connection with the ~~cooperation contemplated by this Section 6.13(d)~~ Available Financing; provided, however, that such trademarks and ~~shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them~~ logos are used solely in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement a manner that is ~~effective prior~~ not intended to ~~the Closing~~ nor reasonably likely to harm or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser disparage Trimble or any of its ~~Affiliates be a condition to any of Purchaser’s~~ Subsidiaries or ~~Purchaser Parent’s obligations under this Agreement.~~the reputation

Appears in 4 contracts

Sources: Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Agco Corp /De)

Financing. (a) ~~Purchaser~~ Parent and ~~Purchaser Parent each~~ Sub shall ~~use its reasonable best efforts to~~ take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary, proper~~ necessary or advisable to arrange and obtain ~~and to consummate~~ the Equity Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in or contemplated by the ~~Commitment Letter~~ Equity Financing Commitments, in each case prior to when the conditions to the Closing set forth in Article IX (~~including~~ other than those conditions that by their nature cannot be satisfied until the ~~flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Closing Date) are satisfied, including ~~using its reasonable best efforts~~ to (i) maintain in effect the ~~Commitment Letter,~~ Equity Financing Commitments; (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions and covenants applicable to ~~Purchaser or its Affiliates contained~~ Parent and Sub in the ~~Commitment Letter, including~~ Equity Financing Commitments and otherwise comply with its obligations in each case thereunder; (iii) in the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditionsevent that all conditions in Annex I have been satisfied, consummate the Equity Financing on or prior to the date the Closing ~~Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably~~ is required ~~in connection with the Financing,~~ to occur pursuant to Section 2.01(d); and (viiv) ~~comply with its~~ fully enforce each Equity Financing Party’s obligations (and the rights of Parent and Sub) under the ~~Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the~~ Equity Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative FinancingCommitments. (b) ~~Notwithstanding anything~~ Neither Parent nor Sub shall amend, alter, or waive, or agree to amend, alter or waive (in any case whether by action or inaction), any term of the ~~contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇,~~ Equity Financing Commitments that (i) ~~permit~~ amends or modifies any ~~termination, amendment or modification to, or any waiver~~ of ~~any provision or remedy under,~~ the ~~Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new~~ conditions precedent to the receipt of the Equity Financing or imposes additional conditions precedent to the receipt of the Equity Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (Cii) adversely affects ~~in any material respect~~ the ~~ability of Purchaser to enforce its~~ rights ~~against other parties to~~ of, or remedies available to, the ~~Commitment Letter or~~ Company under the ~~definitive agreements in respect thereof~~Equity Financing Commitments, or (Diii) ~~could otherwise~~ would or would reasonably be expected to prevent, impede or delay ~~in any material respect~~ the consummation of the ~~Closing~~ Offer, the Merger or the ~~Transactions~~Equity Financing, ~~or (ii) undertake any merger~~in each case, ~~acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation~~ without the prior written consent of the ~~Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter~~Company. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 3 contracts

Sources: Merger Agreement (Mueller Industries Inc), Merger Agreement (Tecumseh Products Co), Merger Agreement (Tecumseh Products Co)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser~~ conditions of this Agreement, each of Parent ~~each~~ and Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to~~ (i) obtain ~~and to consummate~~ the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Debt Commitment Letter ~~(including~~ or on other terms no less favorable, in aggregate, to Parent and Merger Sub than those described in the ~~flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the~~ Debt Commitment Letter, (ii) ~~negotiate and enter into definitive agreements~~ maintain in effect the Debt Commitment Letter in accordance with ~~respect to~~ its terms until the ~~Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Transactions are consummated, (iii) ~~satisfy~~ satisfy, or cause to be satisfied, on a timely basis all conditions to the closing of and funding under the Debt Commitment Letter applicable to ~~Purchaser or~~ Parent and/or Merger Sub that are within its ~~Affiliates contained in the Commitment Letter~~control, including ~~the payment of any commitment, engagement or placement~~ paying when due all commitment fees ~~required as a condition to~~ and other fees arising under the Financing Documents as and when they become due and payable ~~by Purchaser or its Affiliates~~thereunder, (iv) ~~upon the satisfaction or waiver of such conditions,~~ consummate the Financing at or prior to the Effective Time, and (v) subject to Section 9.08, enforcing the obligations of the parties to the Debt Commitment Letter to the extent necessary to fund the Merger Consideration; provided, that Parent and/or Merger Sub may amend or modify the Debt Commitment Letter, and/or elect to replace all or any portion of the Debt Financing or increase the amount of debt financing to be obtained with alternative debt financing on terms and with conditions not materially less favorable, in the aggregate, than the terms and conditions as set forth in the Debt Commitment Letter as in effect on the date of this Agreement or as amended or modified in accordance with Section 6.07(b) (the “Alternative Financing”), in each case so long as (A) the aggregate proceeds of the Debt Financing (as amended or modified) and/or the Alternative Financing, together with the aggregate proceeds of the Equity Financing, will be sufficient for Parent and the Surviving Company to pay (i) the Merger Consideration, and (ii) any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby and (B) such amendment or modification or the Alternative Financing would not prevent, materially delay or materially impede or impair the ability of Parent and Merger Sub to consummate the Transactions. Parent shall deliver to the Company true and complete copies of all Contracts or other arrangements pursuant to which any alternative sources have committed to provide the Alternative Financing (the “Alternative Financing Documents”) as promptly as practicable after execution thereof; provided, that such Alternative Financing Documents may be redacted in a customary manner to omit fee amounts and the flex provisions provided therein and other information customarily redacted. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Parent shall promptly notify the Company. (b) Subject to the terms and conditions of this Agreement, Parent and Merger Sub agree not to amend, modify or waive any provision of the Debt Commitment Letter, if such amendment, modification or waiver reduces (or would reduce) the aggregate amount of the Debt Financing or imposes new or additional conditions or otherwise expands, amends or modifies the conditions to the Debt Financing in a manner that, in each case, would be expected to prevent or materially delay or otherwise materially adversely affect the ability of Parent or Merger Sub to consummate the Transactions. Parent shall give the Company prompt notice (i) upon becoming aware of any breach of any material provision of the Financing Documents relating to the Equity Financing, the Debt Commitment Letter relating to the Debt Financing or any material Alternative Financing Documents, or termination of any such Financing Document by any party to such Financing Document or (ii) upon the receipt of any written notice from any party to a Financing Document with respect to any threatened breach of any material provision of the Financing Documents relating to the Equity Financing, the Debt Commitment Letter or any material Alternative Financing Documents, or threatened termination of any such Financing Document. (c) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.07 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 pay any fees in excess of, or agree to “market flex” provisions less favorable to Parent, Merger Sub or the Surviving Company (or any of their Affiliates) than, those contemplated by the Debt Commitment Letter and/or, if applicable, the Alternative Financing Documents (in each case, whether to secure waiver of any conditions contained therein or otherwise). (d) The Company agrees to provide, and shall cause each of its Subsidiaries and each of their respective Representatives to provide to Parent and Merger Sub, all cooperation as may be reasonably requested by Parent, Merger Sub or their respective Representatives in connection with the Debt Financing and/or Alternative Financing and the Transactions, including (i) participation in a reasonable number of meetings, presentations, due diligence sessions, road shows, drafting sessions, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the Company, including the Company’s accountants (subject to execution of such customary non-reliance letters as may be requested by such accountants), or its Subsidiaries with Representatives of Parent or Merger Sub and any lenders, arrangers, underwriters, investors or other sources or prospective sources of Debt Financing and/or Alternative Financing, in each case upon reasonable prior notice, and so long as such participation and contact is not unduly disruptive to the conduct of the business of the Company, (ii) assisting in the drafting and preparation of confidential information memoranda, offering memoranda, private placement memoranda, bank information memoranda, offering documents, prospectuses, road show presentations, rating agency presentations and similar documents, business projections, pro forma financial statements and other marketing documents reasonably requested by Parent, Merger Sub or their respective 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 offering documents relating to the Debt Financing and/or Alternative Financing and delivery of customary comfort letters) and furnishing customary authorization letters containing customary representations (including the representation that the historical information provided by the Company and its Subsidiaries for inclusion in any bank information memorandum or lender presentation is accurate and does not include material non-public information about the Company and its Subsidiaries, and designating the information provided by the Company and its Subsidiaries for presentation to the financing sources as suitable to be made available to lenders who do not wish to receive material non-public information) (the “Authorization Letters”), (iii) assisting Parent, Merger Sub and their respective Representatives in obtaining ratings in respect of Parent (or other relevant borrowers) and ratings in respect of any notes or other debt offered or issued as part of the Debt Financing and/or the Alternative Financing, (iv) as promptly as practicable, furnishing Parent, Merger Sub and any sources or prospective sources of Debt Financing and/or Alternative Financing with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent or Merger Sub, including (A) audited consolidated balance sheets of the Company and its consolidated Subsidiaries as of December 31, 2015, December 31, 2016 and, when available, December 31, 2017 and audited consolidated statements of operations, comprehensive income (loss) and cash flows of the Company and its consolidated Subsidiaries for each of the fiscal years ended December 31, 2015, December 31, 2016 and, when available, December 31, 2017 and (B) unaudited consolidated balance sheets and consolidated statements of income (loss) and cash flows for the Company and its consolidated Subsidiaries for each subsequent fiscal quarter ended at least forty-five (45) days prior to the Closing Date, in each case of clauses (A) and (B), prepared in accordance with GAAP (the “Required Information”), using reasonable best efforts to cause the Company’s independent accountants to provide assistance and cooperation in connection therewith to Parent, Merger Sub and any sources or prospective sources of Debt Financing and/or Alternative Financing sources, including to provide customary comfort letters (including as to customary negative assurances) and delivering an executed certificate of the chief financial officer of the Company or an officer performing the equivalent function for the Company with respect to certain historical financial information with respect to the Company (and derived from the Company’s books and records) in the offering documents that would not customarily be covered by ~~drawing on any interim or bridge financing facilities contemplated thereby~~comfort letters (the “CFO Certificate”), (v) ~~obtain such third-party consents~~ reasonably cooperating with advisors, consultants and accountants of Parent, Merger Sub or any sources or prospective sources of Debt Financing and/or Alternative Financing with respect to the conduct of any examination, appraisal or review of the financial condition or any of the assets or liabilities of the Company or any of its Subsidiaries, including for the purpose of establishing collateral eligibility and values, (vi) assisting in the preparation of one or more credit agreements, note purchase agreements, indentures and/or other instruments, as well as any pledge and security documents, and other definitive financing documents, collateral filings or other certificates or documents as may be requested by Parent and otherwise facilitating the pledging of collateral, (vii) (A) to the extent not prohibited by applicable Laws, facilitating the granting of guaranty and/or security or pledging of collateral and (B) executing and delivering any guaranty, pledge and security documents, commitment letters, certificates and other definitive financing documents (including one or more credit agreements, note purchase agreements, indentures and/or other instruments) (the “Definitive Debt Documents”); provided, that any guaranty, collateral pledged or security granted by the Company or any of its Subsidiaries under, and any obligations of the Company or any of its Subsidiaries under, any Definitive Debt Documents to which it is a party shall be contingent upon the occurrence of the Effective Time, (viii) taking all actions reasonably ~~required~~ necessary to (A) permit prospective sources of Debt Financing and/or Alternative Financing to evaluate the Company’s or any of its Subsidiaries’ inventory, current assets, cash management and accounting systems and policies and procedures relating thereto for the purpose of establishing collateral arrangements; provided, that the information provided in connection therewith to such prospective sources of Debt Financing shall be subject to the terms of the Confidentiality Agreements, and (B) establish bank and other accounts, blocked account and control agreements and lock box arrangements in connection with the foregoing, (ix) furnishing Parent, Merger Sub and their respective Representatives, as well as any prospective sources of Debt Financing and/or Alternative Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event ~~within two~~ at least ten (210) Business ~~Days~~Days prior to the Closing) ~~notify ▇▇▇▇▇▇~~ with all documentation and ~~Seller~~ other information required with respect to the Debt Financing and/or Alternative Financing under applicable “know your customer” and anti-money laundering rules, regulations and Laws; provided, that the information provided in connection therewith to such prospective sources of Debt Financing shall ~~use its~~ be subject to the terms of the Confidentiality Agreements, (x) using reasonable best efforts to ~~arrange as promptly as practicable~~ assist Parent in obtaining any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any necessary rating agencies’ confirmation or approval of the ~~effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “~~Debt Financing and/or Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (Bxi) ~~modifies any existing conditions~~ taking all corporate actions reasonably necessary and requested by Parent to ~~the Financing in a manner that affects~~ permit the consummation of ~~all~~ the Debt Financing and/or Alternative Financing, including the execution and delivery of any other certificates, instruments or documents and assisting Parent in obtaining consents and legal opinions contemplated by the Debt Financing and/or Alternative Financing (including compliance with any ~~portion~~ financial assistance, whitewash or similar requirements of Law of any applicable jurisdiction) or otherwise reasonably requested by Parent or Merger Sub and to permit the ~~Financing~~ proceeds thereof to ~~below a level that would impair Purchaser’s ability~~ be made available at Closing to consummate the Transactions, (xii) causing the Company’s chief financial officer (or other director or officer with reasonably equivalent responsibilities) to execute and deliver a solvency certificate on the Closing Date in the form attached to the Debt Commitment Letter, (xiii) approving (A) an increase in the size of the Company Board to such number as is requested in writing by Parent and (B) ~~reduces~~ the ~~committed amount~~ election to the Company Board of the ~~Financing~~individuals who will serve as directors of the Surviving Company, in each case of clauses (A) and (B), effective as of immediately prior to the Effective Time, (Cxiv) ~~adversely affects~~ arranging for customary payoff letters, lien terminations and instruments of discharge to be delivered at or prior to Closing relating to all Indebtedness other than the 2018 Notes and the 2022 Notes to be paid off, discharged and terminated on the Closing Date, and (xv) using commercially reasonable efforts to ensure that the Debt Financing benefits from the existing lending relationships of the Group Companies to the extent requested by Parent. For the avoidance of doubt, the inclusion of any Confidential Information (as defined in the Confidentiality Agreements) in any ~~material respect the ability of Purchaser to enforce its rights against~~ offering memorandum or other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser document in connection with the Debt Financing (that is provided ~~that such requested cooperation does not unreasonably interfere with~~ by the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller Company or any of ~~their respective Affiliates or other~~ its Representatives for such purpose shall not constitute a breach of the Confidentiality Agreements. Neither the Company nor any of its Subsidiaries shall (x) be required to pay any commitment or similar fee prior to the Effective Time, (y) be required to commit to taking any action that is not contingent upon the Closing (including entry into any agreement) or would be effective prior to the Effective Time (other ~~similar fee~~than with respect to the Authorization Letters and the CFO Certificate) or (z) have any liability or obligation under any agreement related to the Debt Financing and/or the Alternative Financing prior to the Effective Time. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing and/or Alternate Financing; provided, ~~provide~~ that such logos are used solely in a manner that is not reasonably likely to harm or disparage the Company of any ~~security~~of its Subsidiaries. (e) If this Agreement is terminated in accordance with its terms prior to the occurrence of the Effective Time, ~~execute~~ Parent shall promptly reimburse the Company for any ~~document, make any representations, provide any indemnification or incur any other expense or Liability~~ reasonable and documented out-of-pocket costs incurred by it in connection with the Financing or and the ~~cooperation contemplated by this~~ Company’s compliance with Section ~~6.13(d~~6.07(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and . Parent shall indemnify and hold harmless ~~▇▇▇▇▇▇~~the Company, ~~Seller~~ its Subsidiaries and their respective ~~Affiliates~~ Representatives from and against any and all ~~Liabilities~~ liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (collectively, “Losses”) actually suffered or incurred by ~~any of~~ them in connection with the arrangement of the Financing and any information utilized in connection therewith (other than information provided by the Company or its Subsidiaries specifically for use in connection therewith); provided, that Parent shall not be liable to the ~~cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇~~Company, ~~Seller~~ its Subsidiaries or their respective ~~Affiliates~~Representatives for any Losses arising from fraud, gross negligence, recklessness or ~~any Persons who are directors~~ willful misconduct of ~~any~~ such persons. Each of Parent and Merger Sub acknowledges and agrees that the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.Company an

Appears in 3 contracts

Sources: Merger Agreement (Zhang Ray Ruiping), Merger Agreement (BPEA Teamsport LTD), Agreement and Plan of Merger (eHi Car Services LTD)

Financing. (a) ~~Purchaser~~ ADI shall deliver to Artistic on or before the date (which shall be no later than five Business Days after it has been cleared by the Securities and ~~Purchaser Parent each shall use its reasonable best efforts to take, or cause~~ Exchange Commission (it being understood that Artistic will notify ADI of such clearance promptly)) (the "Mailing Date") on which the Proxy Statement (as defined in the Merger Agreement) is scheduled to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect mailed to the ~~Financing on the terms~~ stockholders of Artistic true and ~~conditions (including the flex provisions) contained~~ correct copies of each Proposal Letter which shall be in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing full force and ~~due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of~~ effect at such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financingtime. (b) ~~Notwithstanding anything to~~ In the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner event that ~~affects the consummation of~~ all or any portion of the Financing provided for in the Proposal Letters has become unavailable at or prior to ~~below a level that would impair Purchaser’s ability~~ the Mailing Date, regardless of fault, ADI shall deliver to ~~consummate the Transactions, (B) reduces the committed amount~~ Artistic within 10 Business Days of the ~~Financing~~Mailing Date, ~~(C) adversely affects in any material respect~~ proposal, commitment or similar letters from others providing for the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect financing necessary for the consummation of the ~~Closing or~~ transactions contemplated hereby, on and subject to terms and conditions no less favorable to ADI in the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of aggregate than provided for in the ~~Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter~~Proposal Letters. (c) ~~Prior to~~ During the ~~Closing~~period from the Mailing Date through the Closing Date, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in ~~connection with~~ the event that all or any portion of the Financing (provided for in the Proposal Letters becomes unavailable, regardless of fault, ADI shall deliver to Artistic within 30 days of the date that such ~~requested cooperation does not unreasonably interfere with~~ financing became unavailable, proposal, commitment or similar letters from others providing for the ~~ongoing operations~~ financing necessary for the consummation of ~~Seller~~the transactions contemplated hereby, ~~▇▇▇▇▇▇~~ on and ~~their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for~~ subject to terms and ~~participation in customary marketing efforts related~~ conditions no less favorable to ~~the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources~~ ADI in the ~~preparation~~ aggregate than provided for in the Proposal Letters. ADI shall keep Artistic promptly informed of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation all material developments with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are madeFinancing. (d) ~~Notwithstanding~~ ADI intends that the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller terms and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution conditions of the Financing shall be no less favorable taken as a whole than those previously set forth in the Proposal Letters or ~~execute~~ any replacement letters. ADI shall use its best efforts to satisfy at or ~~deliver any certificate, document, instrument or agreement that is effective prior~~ before the Closing all conditions to the ~~Closing or agree~~ transactions constituting the Financing and to ~~any change or modification of any existing certificate, document, instrument or agreement that is effective prior to~~ its drawing down the ~~Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04~~cash proceeds thereunder. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 3 contracts

Sources: Asset Purchase Agreement (Artistic Greetings Inc), Asset Purchase Agreement (Artistic Greetings Inc), Asset Purchase Agreement (Artistic Greetings Inc)

Financing. (a) Subject to the terms and conditions of this Agreement, Purchaser ~~and Purchaser Parent each~~ 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~~ obtain ~~and to consummate~~ the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Debt Commitment ~~Letter (including the flex provisions~~ Letters and any related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”)Fee Letters. Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) not permit any ~~termination~~amendment, ~~amendment~~ modification or ~~modification~~ supplement to be made to, or any waiver of any provision or remedy under, the Debt Commitment ~~Letter~~ Letters or any related Fee ~~Letters~~ Letter, if such ~~termination,~~ amendment, ~~modification,~~ modification or waiver ~~or remedy~~ (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (Bi) reduces the ~~committed~~ aggregate amount of the ~~Financing~~Debt Financing (including by changing the amount of fees to be paid or original issue discount), ~~(C) adversely affects in any material respect~~ when taken together with Purchaser’s cash on hand, to an amount below the ~~ability of Purchaser~~ amount required to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactionssatisfy Purchaser’s obligations under this Agreement, or (ii) ~~undertake~~ imposes new or additional conditions or other terms or otherwise expands, amends or modifies any ~~merger, acquisition, joint venture, disposition, lease, Contract~~ of the conditions to the receipt of the Debt Financing or ~~debt or equity financing~~ other terms in a manner that could reasonably be expected to delay in any material respect or prevent the Closing; provided, however, that Purchaser may, after consultation with Seller, replace or amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date hereof so long as such action would not reasonably be expected to materially ~~impair,~~ delay or prevent ~~consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to~~ the Closing; provided, ~~Seller and ▇▇▇▇▇▇ shall~~further, ~~at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with~~ that the ~~Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations~~ exercise of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources any “flex” provisions in the ~~preparation of (A) a customary offering document~~Fee Letter shall not be considered an expansion, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counselamendment, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors modification of any of the ~~foregoing, shall be required~~ conditions to ~~pass resolutions or consents to approve or authorize~~ the ~~execution~~ receipt of the Debt Financing or ~~execute~~ other terms in a manner that could reasonably be expected to delay in any material respect or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to prevent the Closing. Any ~~information provided~~ reference in this Agreement to ~~Purchaser~~ (x) “Debt Financing” shall include the financing contemplated by the Debt Commitment Letters as amended or ~~its Affiliates pursuant to~~ modified in compliance with this Section ~~6.13(d~~7.14 and (y) “Fee Letter” and “Debt Commitment Letters” shall ~~be subject to the Confidentiality Agreement and~~ include such documents as amended or modified in compliance with this Section ~~6.04~~7.14. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 3 contracts

Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Gaiam, Inc), Membership Interest Purchase Agreement (Sequential Brands Group, Inc.)

Financing. (a) ~~Purchaser~~ IDB Buyer acknowledges and ~~Purchaser Parent each~~ agrees that Seller and its Affiliates and its and their respective Representatives shall ~~use~~ not have any responsibility for, or incur any liability to any Person under, any financing that IDB Buyer may raise in connection with the transactions contemplated by this Agreement and that IDB Buyer shall indemnify and hold harmless Seller and its ~~reasonable best efforts to~~ Affiliates and its and 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 Debt Financing (including any claims asserted by the Financing Sources) and any information utilized in connection therewith. (b) IDB Buyer shall, and shall cause its Representatives and Affiliates 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~~ arrange and consummate the Debt Financing as soon as reasonably practical after the date of this Agreement, but in any event prior to the Closing and to ~~consummate~~ obtain the proceeds of the Debt Financing on the terms and conditions, taken as a whole (~~or any Alternative Financing~~including the flex provisions) described in the Debt Commitment Letter, including executing and delivering all such documents and instruments as may be reasonably required thereunder, including definitive agreements with respect to the financing on the terms and conditions contained in the Debt Commitment Letter (the “Debt Financing Documents”) and: (i) complying with and maintaining in effect the Debt Financing and the Debt Commitment Letter, negotiating and entering into definitive Debt Financing Documents with respect thereto (and maintaining in effect and complying with the terms thereof) on the terms and conditions ~~described~~ (as such terms may be modified or adjusted in accordance with the terms of, and within the limits of, any “flex” provisions set forth in the Debt Commitment Letter (including as specified in any Fee Letter provided pursuant to Section 3.11)) no less favorable, taken as a whole, to IDB Buyer than those contained in the ~~flex provisions related thereto)~~Debt Commitment Letter, ~~subject~~ which agreements shall be in effect as promptly as practicable after the date hereof, but in no event later than the Closing Date; provided, however, that, without limiting the foregoing, in no event shall any of the Debt Financing Documents (nor shall any amendment, supplement, waiver or other modification thereto be reasonably expected to): (A) reduce the aggregate amount of the Debt Financing provided for in the Debt Commitment Letter (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any ~~amendments or modifications thereto permitted by Section 6.13(b)~~such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including ~~using~~ to pay the Purchase Price, and the payment of all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing); (B) expand the conditions or other contingencies to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Commitment Letter, amend or modify any of such conditions or other contingencies in a manner adverse to IDB Buyer or Seller (including by making any such conditions or other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the receipt or funding of the Debt Financing; (C) contain terms (other than those terms expressly set forth in the Debt Commitment Letter that would reasonably be expected to (1) prevent, impede or delay the consummation of the transactions contemplated by this Agreement or the Debt Commitment Letter or the date on which the Debt Financing would be obtained, or (2) make the funding of Debt Financing less likely to occur; (D) adversely impact the ability of IDB Buyer to enforce its ~~reasonable best efforts~~ rights against the Financing Sources; or (E) impose obligations on Seller and its Affiliates; (ii) satisfying, or causing its Representatives to satisfy, as promptly as practicable and on a timely basis all conditions to the Debt Financing contemplated by the Debt Commitment Letter and Debt Financing Documents relating thereto (including by paying any commitment, engagement or placement or other fees that become due and payable under or with respect to the Debt Commitment Letter or Debt Financing Documents); (iii) accepting (and complying with) to the fullest extent all “market flex” provisions contemplated by the Debt Commitment Letter and the Debt Financing Documents; (iv) obtaining all rating agency approvals necessary to obtain the Debt Financing; (v) enforcing its rights under the Debt Commitment Letter and Debt Financing Documents in the event of a breach by the Financing Sources under the Debt Commitment Letter and Debt Financing Documents relating thereto; and (vi) causing the Financing Sources and any other Persons providing Debt Financing to fund the Debt Financing in immediately available funds at the time the Closing is required to occur pursuant to the terms and conditions hereof. (c) IDB Buyer shall not agree to or permit any amendment, supplement or other modification or replacement of, or grant any waiver of any condition, remedy or other provision under, the Debt Commitment Letter or the Debt Financing Documents without the prior written consent of Seller if such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) ~~maintain~~ reduce the aggregate amount of the Debt Financing (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in ~~effect~~ amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and to pay all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing), from that contemplated by the Debt Commitment ~~Letter~~Letter delivered as of the date hereof, (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt or funding of the Debt Financing in a manner adverse to Seller or IDB Buyer, (iii) make it less likely that the Debt Financing would be funded (including by making the conditions to obtaining the Debt Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of IDB Buyer to timely consummate the transactions contemplated by this Agreement, (iv) adversely impact the ability of IDB Buyer to enforce its rights against the other parties to the Debt Commitment Letter or (v) otherwise contravene the limitations set forth in Section 5.16(b)(i)(A)-(E). IDB Buyer shall not agree to the withdrawal, repudiation, termination or rescission of the Debt Commitment Letter or Debt Financing Documents or any provision thereof without the prior written consent of Seller. Upon any amendment, supplement or modification of the Debt Commitment Letter in accordance with this Section 5.16(c), IDB Buyer shall deliver a copy thereof to Seller and references herein to “Debt Commitment Letter” shall include such documents as amended, supplemented or modified in compliance with this Section 5.16(c) and references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as amended, supplemented or modified in compliance with this Section 5.16 and the financing contemplated by the Debt Financing Documents entered into in compliance with this Section 5.16, as applicable. (d) In the event that all or any portion of the Debt Financing becomes or could become unavailable on the terms and conditions (including any “flex” provisions) or from the sources contemplated in the Debt Commitment Letter or the Debt Financing Documents for any reason or the Debt Commitment Letter or the Debt Financing Documents shall be withdrawn, repudiated, terminated or rescinded for any reason (but without limiting the obligations of IDB Buyer in the penultimate sentence of Section 5.16(c) and in Section 5.16(b)(v)), (i) IDB Buyer shall immediately so notify Seller and (ii) IDB Buyer shall arrange and obtain, as promptly as practicable following the occurrence of such event (and in any event no later than the Closing Date), and shall negotiate and enter into definitive agreements with respect ~~to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter~~to, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge alternative financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from same or alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (~~such financing,~~ the “Alternative Financing”~~). Purchaser shall~~ ) in an amount sufficient to consummate the transactions contemplated by this Agreement and pay all related fees and expenses (~~A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1)~~ or replace any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any unavailable portion of the Debt Financing), and shall obtain a new financing commitment letter (including any associated engagement letter and related fee letter) with respect to such Alternative Financing (collectively, the “New Debt Commitment Letter”), copies of which shall be promptly provided to ~~below a level~~ Seller. Notwithstanding the foregoing, no New Debt Commitment Letter may expand upon the conditions precedent or contingencies to the funding or receipt of the Debt Financing on the Closing Date as set forth in the Debt Commitment Letter in effect on the date hereof or otherwise include terms (including any “flex” provisions) that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to ~~prevent, impede or delay~~ make the likelihood that such Debt Financing would be funded less likely. In the event any Alternative Financing is obtained and a New Debt Commitment Letter is entered into in accordance with this Section 5.16(d) (i) any ~~material respect~~ reference in this Agreement to “Debt Financing” shall mean the ~~consummation of~~ debt financing contemplated by the ~~Closing or the Transactions, or~~ Debt Commitment Letter as modified pursuant to clause (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts tobelow, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) ~~assisting Purchaser~~ any reference in this Agreement to the “Debt Commitment Letter” (or defined terms that use such phrases) and to “Debt Financing Documents” shall be deemed to include the Alternative Financing ~~Sources~~ and any New Debt Commitment Letter. Without Seller’s prior written consent, IDB Buyer shall not directly or indirectly take any action that could result in the ~~preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the~~ Debt Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are madebeing available. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Purchase Agreement (Cme Group Inc.), Purchase Agreement (GFI Group Inc.)

Financing. (a) ~~Purchaser~~ Parent and ~~Purchaser Parent each~~ Merger Subsidiary shall use ~~its~~ 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 obtain and to consummate~~ arrange the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment Letter ~~(including~~ or on other terms that would not adversely impact the ~~flex provisions related thereto), subject~~ ability of Parent or Merger Subsidiary to ~~any amendments or modifications thereto permitted by Section 6.13(b)~~consummate the transactions contemplated hereby, including using ~~its~~ reasonable best efforts (taking into account the anticipated timing of the Marketing Period) to (i~~) maintain in effect the Commitment Letter, (ii~~) negotiate and enter into definitive agreements with respect ~~to the Financing~~ thereto on the terms and conditions contained therein (including ~~the flex~~ any “market flex” provisions) ~~contained~~ or on other terms reasonably acceptable to Parent and not in ~~the Commitment Letter, subject to any amendments or modifications thereto permitted by~~ violation of this Section ~~6.13(b)~~8.09, (~~iii~~ii) satisfy on a timely basis all conditions and covenants applicable to ~~Purchaser~~ Parent in the Commitment Letter that are within its control and otherwise comply with its obligations thereunder, (iii) maintain in effect the Commitment Letter until the transactions contemplated by this Agreement are consummated, (iv) enforce its rights under the Commitment Letter, and (v) subject to the terms and conditions contemplated by the Commitment Letter, consummate the Financing at the Closing. Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its ~~Affiliates contained~~ rights under, the Commitment Letter, and/or substitute other debt financing for all or any portion of the Financing from the same and/or alternative Financing Sources, including without limitation to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Financing Commitment as of the date of this Agreement; provided, that any such amendment, replacement, supplement or other modification to 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 (i) impose any additional conditions precedent or expand upon the conditions precedent to the Financing as set forth in the Commitment Letter, ~~including~~ (ii) adversely impact the ~~payment~~ ability of ~~any commitment, engagement~~ Parent or ~~placement fees required as a condition~~ Merger Subsidiary to enforce its rights against the other parties to the Commitment Letter or (iii) prevent or impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. Parent shall be permitted to reduce the amount of Financing ~~and due and payable by Purchaser or~~ under the Commitment Letter in its ~~Affiliates~~reasonable discretion; provided, ~~(iv) upon the satisfaction or waiver of such conditions, consummate~~ that Parent shall not reduce the Financing to an amount committed below the amount that is required, together with other financial resources of Parent and Merger Subsidiary including cash, cash equivalents and marketable securities of Parent, Merger Subsidiary, the Company and the Company’s Subsidiaries on ~~or prior to~~ the Closing Date, ~~including~~ to consummate the Merger on the terms contemplated by ~~drawing on~~ this Agreement; and provided further, that such reduction shall not (i) impose any ~~interim~~ additional conditions precedent or ~~bridge financing facilities contemplated thereby, (v) obtain such third-party consents~~ expand upon the conditions precedent to the Financing as ~~may be reasonably required~~ set forth in ~~connection with the Financing, and (vi) comply with its obligations under~~ the Commitment Letter, (ii) adversely impact the ability of Parent or Merger Subsidiary to enforce its rights against the other parties to the Commitment Letter or (iii) prevent or impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. ~~If Purchaser~~ For the avoidance of doubt, the syndication of the Financing to the extent permitted by the Commitment Letter shall not be deemed to violate Parent’s obligations under this Agreement. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice: (A) of any material breach or ~~Purchaser Parent becomes aware of~~ material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material breach or material default) by any party to any Commitment Letter or definitive document related to the Financing of which Parent or its Affiliates becomes aware; (B) of the receipt of any written notice or other written communication from any Person with respect to any: (x) actual or potential material breach, material default, termination or repudiation by any party to any 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 (y) material dispute or disagreement between or among any parties to any Commitment Letter or any definitive document related to the Financing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or any definitive agreement with respect thereto); and (C) if for any reason Parent or Merger Sub believes in good faith that ~~makes procurement of~~ it will not be able to obtain all or any portion of the Financing ~~reasonably unlikely to occur~~ on the terms, in the manner or from the sources contemplated in by the Commitment ~~Letter~~Letter or the definitive documents related to the Financing; provided, ~~Purchaser shall promptly (and~~ that in no event will Parent or Merger Subsidiary be under any obligation to disclose any information that is reasonably believed to be subject to attorney-client or similar privilege or that is requested for purposes of litigation. As soon as reasonably practicable, but in any event within ~~two~~ three (23) Business ~~Days~~Days after the date the Company delivers Parent or Merger Sub a written request, Parent and Merger Subsidiary shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (A), (B) ~~notify ▇▇▇▇▇▇~~ or (C) of the immediately preceding sentence, and ~~Seller~~ subject to the proviso of the immediately preceding sentence. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (including any “market flex” provisions), Parent shall use its reasonable best efforts to arrange ~~as promptly as practicable any such portion~~ to obtain alternative financing from alternative sources on terms and conditions not materially less favorable to Parent and Merger Subsidiary in an amount sufficient to consummate the ~~aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have~~ transactions contemplated by this Agreement (any ~~of the effects prohibited pursuant to amendment by Section 6.13(b) (~~such alternative financing, any amended or substitute financing permitted by this Section 8.09(a), and the Financing, an “~~Alternative~~ Available Financing”). ~~Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates~~ In the event that on the final day of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, Marketing Period (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the structured as High Yield Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does has not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agenciesbeen consummated, (ii) ~~assisting Purchaser~~ all closing conditions contained in Article 9 shall have been satisfied or waived (other than those conditions that by their nature will not be satisfied until the Closing) and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) ~~furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect~~ all conditions to the ~~pledging~~ Bridge Financing set forth in the Commitment Letter have been satisfied, then Parent shall borrow under and use the proceeds of ~~collateral~~the Bridge Financing (or such alternative bridge financing) to replace such affected portion of the High Yield Financing on the Closing Date. Notwithstanding the foregoing or anything else set forth herein, ~~if applicable. In addition, Seller will use its reasonable best efforts~~ the Company hereby acknowledges that it shall have no claims (contractual or otherwise) against any Financing Source relating to ~~provide to Purchaser and~~ the ~~Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets~~ Merger or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are madeFinancing. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Labarge Inc), Merger Agreement (Ducommun Inc /De/)

Financing. (a) Subject to the terms and conditions of this Agreement, Purchaser will, and ~~Purchaser Parent each shall~~ will cause MIFSA 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, proper or advisable to obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Debt Commitment Letter and the Debt Fee Letter (including ~~the flex~~ any “flex” provisions related thereto)) on or prior to the Closing Date, ~~subject~~ and will cause MIFSA to not, without the Company’s prior written consent, agree to any ~~amendments~~ amendment or ~~modifications thereto permitted by Section 6.13(b)~~modification to, ~~including using~~ or any waiver of any provision or remedy under, the Debt Commitment Letter or the Debt Fee Letter if such amendment, modification or waiver (i) reduces the aggregate amount of the Financing to an amount that, together with the Purchaser’s and its Affiliates’ cash on hand or available committed credit facilities, would be less than an amount that would be required to fund the cash payments required to consummate the transactions contemplated hereby, (ii) adds new (or expands or adversely changes any existing) conditions to obtaining the Financing unless such amendment, modification or waiver results in conditions that are in the aggregate substantially equivalent to the conditions in the Debt Commitment Letter and the Debt Fee Letter immediately prior to such amendment, modification or waiver (or that are more favorable to the Purchaser and its Affiliates) or (iii) would reasonably be expected to (A) materially delay or prevent the Closing, (B) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) materially less likely to occur or (C) materially adversely impact the ability of MIFSA or its Affiliates to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided, however, that Purchaser may cause MIFSA to amend or replace the Debt Commitment Letter or the Debt Fee Letter to (i) add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement or (ii) implement or exercise any “flex” provisions provided in the Debt Fee Letter as in effect on the date of this Agreement. Purchaser will cause MIFSA to use its reasonable best efforts to (iI) maintain in effect the Debt Commitment Letter, (iiII) satisfy (or, if deemed advisable by MIFSA, obtain the waiver of, and cause each of its Affiliates to satisfy) on a timely basis all conditions to the Financing that are within Purchaser and its Affiliates’ control, (III) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions ~~(including the flex provisions)~~ contained in the Debt Commitment ~~Letter, subject to any amendments~~ Letter or ~~modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis~~ consistent in all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection material respects with the ~~Financing,~~ Debt Commitment Letter and the Debt Fee Letter (including any “flex” provisions contained therein) and (viIV) ~~comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion~~ draw a sufficient amount of the Financing ~~reasonably unlikely~~ to ~~occur~~ enable Purchaser to consummate the transactions contemplated hereby, in the ~~manner or from~~ event that the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in Sections 7.01 and 7.02 and the ~~Commitment Letter and that would not have any~~ conditions to the availability of the ~~effects prohibited pursuant~~ Financing have been satisfied or waived (other than those conditions that by their nature are to ~~amendment by Section 6.13(b) (such financing,~~ be satisfied on the ~~“Alternative Financing”~~Closing Date). Purchaser shall ~~(A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by~~ cause the net proceeds from the Financing to be available to Purchaser ~~or its Affiliates~~ on the Closing Date. Upon the request of the ~~Commitment Letter~~Company or Seller, ~~Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than~~ Purchaser ~~or its Affiliates) of~~ will keep Seller and the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller Company reasonably informed on a reasonably current basis of the status of Purchaser’s ~~and its Affiliates’~~ efforts to ~~arrange~~ obtain the ~~Financing~~ Financing, including providing Seller with prompt notice of (x) any repudiation, termination or ~~Alternative~~ breach of the Debt Commitment Letter by any party thereto, of which Purchaser becomes aware and (y) the occurrence of any other event or development that would reasonably be expected to materially adversely impact the ability of Purchaser to obtain all or any portion of the Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification The Company agrees to, ~~or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions~~ and to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce cause its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expenseSubsidiaries to, use reasonable best efforts to, prior to the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, provide such assistance (and to use reasonable best efforts to cause its and its Subsidiaries’ Representatives toto provide such assistance) with the Financing as is customary with Financings of the type contemplated by the Debt Commitment Letter (including the senior notes offering contemplated thereby) and reasonably requested by Purchaser, ~~provide~~ including: (a) participation in, and assistance with, the marketing efforts related to the Financing, including assisting Purchaser with Purchaser’s preparation of customary confidential information memoranda, private placement memoranda, prospectuses, offering memoranda and other customary marketing materials and information reasonably deemed necessary by the Financing Sources to complete a successful syndication for delivery to potential syndicate members and participants; (b) participation by senior management, representatives and advisors of the Company in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors (including, for the avoidance of doubt, direct contact with such rating agencies and prospective lenders and debt investors), in each case, at such times as coordinated reasonably in advance thereof; (c) delivery to Purchaser and its Financing Sources as promptly as reasonably practicable of (i) the documentation and other information requested by the Financing Sources with respect to (x) applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the FCPA (and, in any event, at least three (3) Business Days prior to the Closing Date, to the extent requested at least nine (9) days prior to the Closing Date), (ii) the Financing Information relating to the Company and (iii) such ~~cooperation as is~~ other financial information relating to the Company customary or reasonably necessary for the completion of the Financing to the extent reasonably requested by Purchaser in connection with the preparation of customary offering or information documents to be used for the Financing (~~provided that~~ which financing information, for the avoidance of doubt, may be included in any such ~~requested cooperation does not unreasonably interfere~~ offering or information documents used for or distributed in connection with the ~~ongoing operations~~ Financing); (d) direct its independent auditors to cooperate with the Financing consistent with their customary practice, including by providing customary “comfort letters” (including customary “negative assurances”) and customary assistance with the due diligence activities of ~~Seller~~Purchaser and its Affiliates and the Financing Sources, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings, in each case, in connection with any proposed issuance and sale of securities; (e) assisting Purchaser with preparing pro forma financial information regarding the Company and its Subsidiaries as part of Purchaser’s preparation of pro forma financial information and pro forma financial statements for Purchaser and its Subsidiaries on a consolidated basis and other materials for rating agency presentations, bank information memoranda, offering or private placement memoranda, financial projections for the Company as part of the consolidated business of Parent and its Subsidiaries, and not on a stand-alone basis, and similar documents used in connection with the Financing and assisting Purchaser in preparing customary estimates and other forward looking financial information regarding the future performance of the Company as a part of the consolidated business of Parent and its Subsidiaries, and not on a stand-alone basis, to the extent reasonably requested by the Financing Sources, and providing customary management representation letters to its accountants in relation to its accountants’ providing “comfort letters” in connection with any securities offering made as part of the Financing (“Representation Letters”); (f) executing and delivering definitive financing documents (but excluding, for the avoidance of doubt, authorization letters), including certificates (but not solvency certificates), Representation Letters, and other documents, to the extent reasonably requested by Purchaser; and (g) assisting Purchaser and its Affiliates in causing the conditions precedent in the Debt Commitment Letter to the Financing to be satisfied. If at any ▇▇▇▇ ▇▇▇▇▇▇ believes in good faith that it has delivered to Purchaser all Financing Information and ~~their respective Affiliates~~such Financing Information is Compliant, it may deliver a written notice to Purchaser to such effect, in which case the Financing Information shall be deemed to have been delivered and to be Compliant as of the date of delivery of such notice, unless Purchaser in good faith reasonably believes either any Financing Information has not been received or is not Compliant and, within five (5) consecutive Business Days after the date of Purchaser’s receipt of the aforementioned notice, delivers a written notice to Seller to that effect and stating with specificity what Financing Information it believes it has not received or is not Compliant; provided, however, that (x) for the avoidance of doubt, notwithstanding such five (5) consecutive Business Day period, if Purchaser does not deliver any such written notice during such period, the Financing Information shall be deemed to have been delivered, and to be Compliant, as of the date of delivery of Seller’s notice described above, and such five (5) Business Day period shall not be deemed in any way to extend the 15 consecutive Business Day period specified in Section 2.01(ii)(A), and (y) irrespective of the delivery of such a notice by Seller, the Company shall continue to comply with its obligations under this Section 6.12(b) in all respects. (c) 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 reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries. ~~Such assistance shall include~~ Notwithstanding any other provision set forth herein or in any other agreement between the ~~following:~~ Company and Purchaser (or its affiliates), the Company agrees that the Purchaser and its affiliates may share customary projections with respect to the Company as part of the consolidated business of Parent and its Subsidiaries, and not on a stand-alone basis, that the Company assisted the Purchaser in preparing in accordance with Section 6.12(b) with the Financing Sources identified in the Debt Commitment Letter, and that Purchaser, its affiliates and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality agreements. Notwithstanding the requirements of Section 6.12(b), (i) ~~assisting in preparation for and participation in customary marketing efforts related~~ neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into any letter, certificate, document, agreement or instrument that will be effective prior to the ~~Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies~~Closing (other than Representation Letters), (ii) ~~assisting Purchaser and~~ nothing herein shall require cooperation contemplated thereby to the ~~Financing Sources in~~ extent it would interfere unreasonably with the ~~preparation~~ business or operations of ~~(A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for~~ the ~~Financing~~ Company or ~~the Alternative Financing, as applicable, and (B) materials for rating agency presentations~~any of its Subsidiaries, (iii) ~~furnishing Purchaser and~~ nothing herein shall require the ~~Financing Sources~~ Company (A) to cause its legal counsel to deliver any legal opinions or (B) to deliver any authorization letters or any certificate as to solvency by Seller or the ~~Required Information;~~ Company or its Subsidiaries, and (iv) ~~facilitating Purchaser’s preparation of documentation~~ nothing herein shall require the Company to provide or deliver (1) subject to Section 6.15, any audited or unaudited financial statements not (x) delivered or provided to Purchaser prior to the date hereof or (y) otherwise constituting Financing Information, or (2) any financial information with respect to a month or fiscal period that has not yet ended or that has ended less than 45 days prior to the ~~pledging~~ date of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such ~~statements are made~~request. (d) ~~Notwithstanding~~ Whether or not the ~~foregoing~~Closing occurs, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser ~~shall~~ will promptly, upon request by ~~▇▇▇▇▇▇ or Seller~~the Company, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ the Company for all reasonable and documented out-of-pocket ~~fees,~~ costs and expenses ~~incurred by any of them~~ (including reasonable attorneys’ ~~fees~~ fees) incurred by the Company or any of its Subsidiaries (other than with respect to any costs associated with preparing its regular quarterly and ~~other fees and expenses as incurred~~annual financial statements) in connection with the cooperation of the Company and its Subsidiaries contemplated by ~~this~~ Section ~~6.13(d) and shall~~ 6.12(b). Purchaser will indemnify and hold harmless ~~▇▇▇▇▇▇~~the Company, ~~Seller~~ its Affiliates and their respective ~~Affiliates~~ Representatives from and against any and all ~~Liabilities~~ losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing ~~or the cooperation contemplated by~~ (including any action taken in accordance with this Section ~~6.13(d~~6.12) and ~~(iv) none of ▇▇▇▇▇▇~~any assistance or activities in connection therewith, ~~Seller or their respective Affiliates, or any Persons who are directors of~~ in each case other than to the extent any of the ~~foregoing~~foregoing arises from the bad faith, ~~shall be required to pass resolutions~~ gross negligence or ~~consents to approve~~ willful misconduct of, or ~~authorize the execution~~ breach of ~~the Financing or execute or deliver~~ this Agreement by any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04such Person. (e) In Notwithstanding anything herein to the contrary, in no event shall any failure to obtain any Financing nor any failure to fund any Financing relieve Purchaser of any obligation under or in respect of this Agreement, including the ~~receipt~~ obligation to timely consummate the transactions contemplated by this Agreement as required hereby, and neither the obtaining nor the availability or funding of any Financing shall constitute a condition to Purchaser’s obligation to timely consummate the transactions contemplated by this Agreement as required hereby. Purchaser reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing, ~~Alternative Financing~~ subject to satisfaction or ~~any other funds or financing by Purchaser or any~~ waiver of ~~its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement~~the conditions set forth in Article VII.

Appears in 2 contracts

Sources: Stock Purchase Agreement, Stock Purchase Agreement (Mallinckrodt PLC)

Financing. (a) ~~Purchaser~~ Each of Parent and ~~Purchaser Parent~~ Merger Sub shall, and shall cause each ~~shall~~ of its respective controlled 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, proper or advisable to ~~obtain~~ consummate and to ~~consummate~~ obtain the Debt Financing (on or ~~any Alternative Financing)~~ prior to the Acceptance Time on the terms and conditions described in the Commitment Letter (including the ~~flex~~ exercise of any “market flex” provisions ~~related thereto~~in the Fee Letter) and shall not permit any amendment, supplement, modification or replacement to be made to, or any waiver of any provision or any of its rights under, the Commitment Letter or the Definitive Agreements without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), ~~subject~~ if such amendment, supplement, modification, replacement or waiver (i) reduces the aggregate cash amount of proceeds of the Debt Financing to an amount below the amount (that when combined with the liquidity Parent then contemplates to be, and which is available to be, applied thereto) required to consummate the Offer, the Merger and the other transactions contemplated by this Agreement and to repay or refinance the debt contemplated to be replaced by the Commitment Letter, including the payment of all fees, premiums and expenses associated therewith, (ii) imposes new or additional conditions or any ~~amendments~~ contingencies or ~~modifications thereto permitted~~ otherwise expands upon, amends, supplements or otherwise modifies any of the conditions set forth in the Commitment Letter on the date hereof in a manner that would or would reasonably be expected to make a material portion of the Debt Financing less likely to be timely obtained (or the conditions to obtaining the Debt Financing less likely to be timely satisfied), (iii) prevents, materially impedes or materially delays the Closing, (iv) adversely impacts the ability of either Parent or Guarantor to enforce its rights against any other parties to the Commitment Letter or the Definitive Agreements in any material respect or (v) materially adversely impacts the ability of Parent or Merger Sub to consummate the Offer at the Acceptance Time, the Merger at the Closing or any of the other transactions contemplated by this Agreement. For the avoidance of doubt, Parent and Merger Sub may amend, supplement, modify or replace the Commitment Letter and the Fee Letter, in each case as in effect at the date hereto, or the Definitive Agreements, but only if any such amendment, supplement, modification or replacement is not inconsistent with the immediately preceding sentence, (w) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Commitment Letter and the Fee Letter as of the date hereof, (x) to increase the amount of indebtedness, (y) to add or replace facilities with one or more new facilities or (z) otherwise in a manner not less favorable taken as a whole to Parent and Merger Sub. For purposes of this Agreement, (1) the term “Debt Financing” shall be deemed to include the Debt Financing, as amended, modified or replaced pursuant to this Section ~~6.13(b~~5.2(a) and (2) the term “Commitment Letter” shall be deemed to include the Commitment Letter as it may be amended, supplemented, modified or replaced pursuant to this Section 5.2(a). Parent shall promptly deliver to the Company a true and complete copy of any such amendment, supplement, modification, replacement or waiver of the Commitment Letter or the Definitive Agreements. (b) Each of Parent and Merger Sub shall, and shall cause each of its respective controlled 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, proper or advisable to consummate and to obtain the Debt Financing on or prior to the Acceptance Time on the terms and conditions described in the Commitment Letter (including the exercise of any “market flex” provisions in the Fee Letter), including using ~~its~~ reasonable best efforts to (i) comply with the terms and conditions of, and maintain in ~~effect~~ effect, the Commitment ~~Letter~~Letter pursuant to its terms (except for amendments, supplements, modifications and replacements made in compliance with Section 5.2(a)), (ii) negotiate and enter ~~into~~ into, at or prior to the Acceptance Time, definitive agreements (such definitive agreements, the “Definitive Agreements”) with respect to the Debt Financing (and promptly upon the execution and delivery thereof, provide true and complete copies of the Definitive Agreements to the Company) on the terms and conditions ~~(including the flex provisions) contained~~ set forth in the Commitment Letter (including, if necessary, the exercise of “market flex” provisions in the Fee Letter) or on other terms and conditions that would not, ~~subject~~ if such other terms and conditions constituted an amendment to ~~any amendments or modifications thereto permitted by~~ the Definitive Agreements, be inconsistent with Section ~~6.13(b~~5.2(a), (iii) satisfy on a timely basis (or, if deemed advisable by Guarantor, seek a waiver on a timely basis of) all conditions and covenants applicable to ~~Purchaser or its Affiliates contained~~ Guarantor and Parent to the funding of the Debt Financing set forth in the Commitment ~~Letter, including~~ Letter or the ~~payment of any commitment, engagement or placement fees required as a condition to the Financing~~ Definitive Agreements and ~~due and payable by Purchaser or its Affiliates,~~ (iv) if all conditions to the Debt Financing are, or upon funding of the ~~satisfaction or waiver of such conditions~~Debt Financing will be, ~~consummate~~ satisfied, cause the Financing on Sources to comply with their obligations under the Commitment Letter and the Definitive Agreements and to fund at or prior to the Acceptance Time, the Debt Financing required to consummate the Offer at the Acceptance Time, the Merger at the Closing ~~Date~~and the other transactions contemplated by this Agreement, ~~including by drawing on any interim or bridge financing facilities contemplated thereby~~including, ~~(v) obtain such third-party consents as may be reasonably required in connection with the Financing~~if necessary, ~~and (vi) comply with~~ enforcing its ~~obligations~~ rights under the Commitment ~~Letter. If Purchaser~~ Letter and the Definitive Agreements, provided however, under no circumstances shall Parent or ~~Purchaser Parent becomes aware of any~~ Guarantor be required to commence or sustain legal proceedings in connection therewith. (c) In the event that all or ~~circumstance that makes procurement of~~ any portion of the Debt Financing becomes unavailable and such portion is reasonably ~~unlikely~~ required to ~~occur in~~ consummate the ~~manner or from~~ Offer, the ~~sources~~ Merger and the other transactions contemplated ~~in the Commitment Letter~~by this Agreement, ~~Purchaser shall promptly (~~each of Guarantor and ~~in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and~~ Parent shall use its reasonable best efforts to arrange ~~as promptly as practicable any such portion from alternative sources~~ and timely obtain substitute financing (on terms and conditions that are not materially less favorable ~~in the aggregate~~ to ~~Purchaser~~ Guarantor and ~~its Affiliates~~ Parent, taken as a whole, than the terms and conditions set forth in the Commitment Letter relating to the Debt Financing to be replaced, taking into account the “market flex” provisions thereof) from the same or alternative sources in an amount sufficient to consummate Offer, the Merger and ~~that would not have any~~ the other transactions contemplated by this Agreement (the “Substitute Financing”) (and shall promptly upon the execution and delivery thereof, provide to the Company true and complete copies of the ~~effects prohibited pursuant~~ material, definitive documents related to ~~amendment by Section 6.13(b)~~ the Substitute Financing (~~such financing~~provided that, with respect to any fee letters, the fee amounts, pricing caps and other economic terms, and the rates and amounts included in the “~~Alternative Financing”~~market flex” provisions (but not covenants), may be redacted). ~~Purchaser~~ All references to the term “Debt Financing” shall ~~(A)~~ be deemed to include such Substitute Financing and all references to the “Commitment Letter,” the “Fee Letter” and “Definitive Agreements” shall include the applicable documents for the Substitute Financing. Parent shall give ~~▇▇▇▇▇▇ and Seller~~ the Company prompt ~~oral and~~ written notice of any (1i) ~~any~~ material breach ~~or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default~~ by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment ~~Letter~~Letter or the Definitive Agreements of which Parent or Merger Sub becomes aware or (ii) receipt by it of any written notice from any the Lenders or any other Financing Sources with respect to any actual or threatened withdrawal, ~~Alternative~~ repudiation or termination of the Debt Financing by the Lenders or ~~definitive financing agreements related thereto, and (B) upon request, otherwise~~ any other Financing Sources. Parent shall keep ~~▇▇▇▇▇▇ and Seller~~ the Company reasonably informed of the status of ~~Purchaser’s~~ the efforts of Guarantor and ~~its Affiliates’ efforts~~ Parent to arrange and obtain the ~~Financing or Alternative~~ Debt Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Salix Pharmaceuticals LTD), Merger Agreement (Valeant Pharmaceuticals International, Inc.)

Financing. (a) ~~Purchaser~~ IDB Buyer acknowledges and ~~Purchaser Parent each~~ agrees that Seller and its Affiliates and its and their respective Representatives shall ~~use~~ not have any responsibility for, or incur any liability to any Person under, any financing that IDB Buyer may raise in connection with the transactions contemplated by this Agreement and that IDB Buyer shall indemnify and hold harmless Seller and its ~~reasonable best efforts to~~ Affiliates and its and 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 Debt Financing (including any claims asserted by the Financing Sources) and any information utilized in connection therewith. (b) IDB Buyer shall, and shall cause its Representatives and Affiliates 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~~ arrange and consummate the Debt Financing as soon as reasonably practical after the date of this Agreement, but in any event prior to the Closing and to ~~consummate~~ obtain the proceeds of the Debt Financing on the terms and conditions, taken as a whole (~~or any Alternative Financing~~including the flex provisions) described in the Debt Commitment Letter, including executing and delivering all such documents and instruments as may be reasonably required thereunder, including definitive agreements with respect to the financing on the terms and conditions contained in the Debt Commitment Letter (the "Debt Financing Documents") and: (i) complying with and maintaining in effect the Debt Financing and the Debt Commitment Letter, negotiating and entering into definitive Debt Financing Documents with respect thereto (and maintaining in effect and complying with the terms thereof) on the terms and conditions ~~described~~ (as such terms may be modified or adjusted in accordance with the terms of, and within the limits of, any "flex" provisions set forth in the Debt Commitment Letter (including as specified in any Fee Letter provided pursuant to Section 3.11)) no less favorable, taken as a whole, to IDB Buyer than those contained in the ~~flex provisions related thereto)~~Debt Commitment Letter, ~~subject~~ which agreements shall be in effect as promptly as practicable after the date hereof, but in no event later than the Closing Date; provided, however, that, without limiting the foregoing, in no event shall any of the Debt Financing Documents (nor shall any amendment, supplement, waiver or other modification thereto be reasonably expected to): (A) reduce the aggregate amount of the Debt Financing provided for in the Debt Commitment Letter (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any ~~amendments or modifications thereto permitted by Section 6.13(b)~~such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including ~~using~~ to pay the Purchase Price, and the payment of all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing); (B) expand the conditions or other contingencies to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Commitment Letter, amend or modify any of such conditions or other contingencies in a manner adverse to IDB Buyer or Seller (including by making any such conditions or other contingencies less likely to be satisfied) or impose any new or additional condition or other contingency to the receipt or funding of the Debt Financing; (C) contain terms (other than those terms expressly set forth in the Debt Commitment Letter that would reasonably be expected to (1) prevent, impede or delay the consummation of the transactions contemplated by this Agreement or the Debt Commitment Letter or the date on which the Debt Financing would be obtained, or (2) make the funding of Debt Financing less likely to occur; (D) adversely impact the ability of IDB Buyer to enforce its ~~reasonable best efforts~~ rights against the Financing Sources; or (E) impose obligations on Seller and its Affiliates; (ii) satisfying, or causing its Representatives to satisfy, as promptly as practicable and on a timely basis all conditions to the Debt Financing contemplated by the Debt Commitment Letter and Debt Financing Documents relating thereto (including by paying any commitment, engagement or placement or other fees that become due and payable under or with respect to the Debt Commitment Letter or Debt Financing Documents); (iii) accepting (and complying with) to the fullest extent all "market flex" provisions contemplated by the Debt Commitment Letter and the Debt Financing Documents; (iv) obtaining all rating agency approvals necessary to obtain the Debt Financing; (v) enforcing its rights under the Debt Commitment Letter and Debt Financing Documents in the event of a breach by the Financing Sources under the Debt Commitment Letter and Debt Financing Documents relating thereto; and (vi) causing the Financing Sources and any other Persons providing Debt Financing to fund the Debt Financing in immediately available funds at the time the Closing is required to occur pursuant to the terms and conditions hereof. (c) IDB Buyer shall not agree to or permit any amendment, supplement or other modification or replacement of, or grant any waiver of any condition, remedy or other provision under, the Debt Commitment Letter or the Debt Financing Documents without the prior written consent of Seller if such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) ~~maintain~~ reduce the aggregate amount of the Debt Financing (including by changing the amount of fees or original issue discount contemplated by the Debt Commitment Letter other than, solely with respect to original issue discount, as expressly set forth therein unless after giving effect to the maximum amount of any such deduction, the aggregate net proceeds from the Debt Financing are and will be sufficient in ~~effect~~ amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and to pay all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing), from that contemplated by the Debt Commitment ~~Letter~~Letter delivered as of the date hereof, (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt or funding of the Debt Financing in a manner adverse to Seller or IDB Buyer, (iii) make it less likely that the Debt Financing would be funded (including by making the conditions to obtaining the Debt Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of IDB Buyer to timely consummate the transactions contemplated by this Agreement, (iv) adversely impact the ability of IDB Buyer to enforce its rights against the other parties to the Debt Commitment Letter or (v) otherwise contravene the limitations set forth in Section 5.16(b)(i)(A)-(E). IDB Buyer shall not agree to the withdrawal, repudiation, termination or rescission of the Debt Commitment Letter or Debt Financing Documents or any provision thereof without the prior written consent of Seller. Upon any amendment, supplement or modification of the Debt Commitment Letter in accordance with this Section 5.16(c), IDB Buyer shall deliver a copy thereof to Seller and references herein to "Debt Commitment Letter" shall include such documents as amended, supplemented or modified in compliance with this Section 5.16(c) and references to "Debt Financing" shall include the financing contemplated by the Debt Commitment Letter as amended, supplemented or modified in compliance with this Section 5.16 and the financing contemplated by the Debt Financing Documents entered into in compliance with this Section 5.16, as applicable. (d) In the event that all or any portion of the Debt Financing becomes or could become unavailable on the terms and conditions (including any "flex" provisions) or from the sources contemplated in the Debt Commitment Letter or the Debt Financing Documents for any reason or the Debt Commitment Letter or the Debt Financing Documents shall be withdrawn, repudiated, terminated or rescinded for any reason (but without limiting the obligations of IDB Buyer in the penultimate sentence of Section 5.16(c) and in Section 5.16(b)(v) ), (i) IDB Buyer shall immediately so notify Seller and (ii) IDB Buyer shall arrange and obtain, as promptly as practicable following the occurrence of such event (and in any event no later than the Closing Date), and shall negotiate and enter into definitive agreements with respect to, alternative financing from the same or alternative sources (the "Alternative Financing") in an amount sufficient to consummate the transactions contemplated by this Agreement and pay all related fees and expenses (or replace any unavailable portion of the Debt Financing), and shall obtain a new financing commitment letter (including any associated engagement letter and related fee letter) with respect to such Alternative Financing (collectively, the "New Debt Commitment Letter"), copies of which shall be promptly provided to Seller. Notwithstanding the foregoing, no New Debt Commitment Letter may expand upon the conditions precedent or contingencies to the funding or receipt of the Debt Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required Closing Date as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Debt Commitment Letter ~~and~~ in effect on the date hereof or otherwise include terms (including any "flex" provisions) that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information likelihood that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.such

Appears in 2 contracts

Sources: Purchase Agreement (Jersey Partners Inc.), Purchase Agreement (Jersey Partners Inc.)

Financing. (a) Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Financing Commitment and/or the Escrow Indenture Documents, without the prior written consent of Seller, if such amendment, modification, waiver or replacement (i) (A) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount) to an amount that is below an amount that, assuming the accuracy of the representations and warranties contained in Article III and Article IV, is sufficient to complete the transactions contemplated by this Amended Agreement and pay all fees and amounts in connection with this Amended Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, (B) imposes new or additional conditions or otherwise adversely expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or (C) otherwise expand, amend or modify any provision of the Debt Financing Commitment and/or the Escrow Indenture Documents, in the case of this clause (C), in a manner that would reasonably be expected to (I) materially delay or prevent the Closing, (II) adversely impact in any material respect the ability of Purchaser ~~Parent each~~ to enforce its rights under the Debt Financing Commitment or the definitive agreements with respect thereto and/or the Escrow Indenture Documents or (III) materially delay or impair the availability of the Debt Financing at the Closing or materially impede the satisfaction of the conditions to obtaining the Debt Financing at the Closing (including release of the proceeds of the Escrow Notes from escrow) (clauses (A), (B) and (C), collectively, the “Restricted Financing Commitment Amendments”) (provided that, subject to the limitations set forth in this Section 6.12, Purchaser may amend the Debt Financing Commitment (1) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment, or (2) in connection with an alternative financing as contemplated by clause (b) of this Section 6.12) or (ii) results in the early termination of the Debt Financing Commitment. (b) Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Financing Commitment and the Escrow Indenture Documents, including using its reasonable best efforts to (i) maintain in effect the Debt Financing Commitment (including by complying with so-called “flex” provisions) until the funding of the Debt Financing at or prior to the Closing, (ii) satisfy on a timely basis (or obtain a waiver of) all conditions to obtaining the Debt Financing at the Closing as set forth in the Debt Financing Commitment and the Escrow Indenture Documents (other than those that are solely within the control of Seller and its Subsidiaries) and comply with all of its material obligations thereunder, (iii) negotiate, execute and deliver definitive agreements (which with respect to any bridge facility documentation shall not be required until reasonably necessary in connection with the funding of the Debt Financing) with respect to such Debt Financing on the terms and conditions (including the “flex” provisions) contemplated by the Debt Financing Commitment and the Escrow Indenture Documents (and provide executed copies of such definitive agreements to Seller) or on other terms in the aggregate materially no less favorable to Purchaser or the interests of Seller, as to conditionality, than the terms and conditions in the Debt Financing Commitment and the Escrow Indenture Documents, as applicable (provided that in no event shall any such definitive agreement contain terms (other than those included in the Debt Financing Commitment and the Escrow Indenture Documents) that would constitute Restricted Financing Commitment Amendments), (iv) fully pay any and all commitment fees or other fees required by the Debt Financing Commitment, and (v) upon satisfaction of the conditions set forth in the Debt Financing Commitment and the Escrow Indenture Documents, consummate the Debt Financing at or prior to the Closing and enforce its rights under the Debt Financing Commitment and the Escrow Indenture Documents. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Debt Financing Commitment and the Escrow Indenture Documents, Purchaser shall promptly notify Seller 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 obtain ~~and to consummate the Financing (or any Alternative Financing)~~ alternative financing from alternative sources for such portion on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (~~including~~ x) not materially less favorable to Purchaser than the ~~flex provisions~~Debt Financing Commitment and the Escrow Indenture Documents, (y) ~~contained~~ with conditions to the funding of the Debt Financing not materially less favorable to the interests of Seller than those included in the Debt Financing Commitment ~~Letter~~and the Escrow Indenture Documents, ~~subject~~ and (z) in an amount sufficient to ~~any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in~~ consummate the ~~Commitment Letter~~transactions contemplated hereby, including the payment of ~~any commitment~~the Estimated Purchase Price, ~~engagement or placement~~ the amount to be paid pursuant to Section 2.04 and all related fees ~~required as a condition to~~ and expenses promptly following the ~~Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver~~ occurrence of such ~~conditions~~event, ~~consummate the Financing on or~~ and in any event prior to or on the Closing Date, ~~including by drawing on~~ and, if obtained, Purchaser shall promptly deliver to Seller true and complete copies of a new financing commitment pursuant to which any ~~interim or bridge financing facilities contemplated thereby, (v) obtain~~ such ~~third-party consents as may be reasonably required in connection~~ alternative source shall have committed to provide Purchaser with ~~the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of~~ any portion of the ~~Financing~~ Debt Financing. Purchaser shall keep Seller reasonably ~~unlikely~~ informed and in reasonable detail with respect to ~~occur~~ all material developments concerning the Debt Financing, including advising and updating Seller, in a reasonable level of detail, with respect to status and proposed closing date of the ~~manner or from~~ Debt Financing. Without limiting the ~~sources contemplated in~~ generality of the ~~Commitment Letter~~foregoing, Purchaser shall promptly ~~(and~~ notify Seller in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice writing of (1) any breach or default by any party to the Debt Financing Commitment or the Escrow Indenture Documents of which Purchaser has become aware, which breach or ~~its Affiliates~~ default if not cured could reasonably be expected to result in the unavailability of the ~~Commitment Letter, Alternative~~ Debt Financing or ~~definitive financing agreements related thereto~~any termination of any of the Debt Financing Commitment or the Escrow Indenture Documents, (2) ~~any known breach or default~~ of the receipt by ~~any party (other than~~ Purchaser or any of its ~~Affiliates~~Affiliates or their respective employees, agents or representatives of any notice or other communication from any Person with respect to any (I) ~~of the Commitment Letter~~actual or potential breach, ~~Alternative Financing or definitive financing agreements related thereto~~default, ~~(3) any purported~~ termination or repudiation by any party of to any Debt Financing Commitment, the ~~Commitment Letter, Alternative Financing~~ Escrow Indenture Documents or any definitive ~~financing agreements~~ agreement related thereto or (4II) ~~the receipt of notice of any~~ material dispute or disagreement between or among any parties to any Debt Financing Commitment, the Escrow Indenture Documents or any definitive agreement related thereto, in each case which could reasonably be expected to result in the unavailability of the Debt Financing or any termination of any of the Debt Financing Commitment or the Escrow Indenture Documents, and (3) if for any reason Purchaser believes in good faith that (I) there is (or there is reasonably likely to be) a material dispute or disagreement between or among any parties to the ~~Commitment Letter~~Debt Financing Commitment, ~~Alternative~~ the Escrow Indenture Documents or any definitive agreement related thereto which could reasonably be expected to result in the unavailability of the Debt Financing or ~~definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed~~ any termination of any of the ~~status of Purchaser’s and its Affiliates’ efforts~~ Debt Financing Commitment or the Escrow Indenture Documents or (II) there is a material possibility that it will not be able to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of obtain all or any portion of the financing contemplated in the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ Commitment and the ~~Transactions~~Escrow Indenture Documents on the terms, ~~(B) reduces~~ in the ~~committed amount of~~ manner or from the ~~Financing~~sources contemplated by the Debt Financing Commitment, ~~(C) adversely affects in any material respect~~ the ~~ability of Purchaser to enforce its rights against other parties to the Commitment Letter~~ Escrow Indenture Documents or the definitive agreements related thereto. References in ~~respect thereof, or (D) could otherwise reasonably be expected~~ this Amended Agreement to ~~prevent, impede or delay in any material respect~~ “Debt Financing” shall include the ~~consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity~~ financing ~~that could reasonably be expected to materially impair, delay or prevent consummation of the Financing~~ contemplated by the Debt Financing Commitment ~~Letter~~ and the Escrow Indenture Documents as permitted by this Section 6.12 to be amended, modified or ~~any Alternative~~ replaced (including, replacement with alternative financing and alternative financing commitments pursuant to this Section 6.12) and references to “Debt Financing ~~contemplated~~ Commitment” shall include such documents as permitted by ~~any new debt commitment letter~~this Section 6.12 to be amended, modified or replaced (including replacement with alternative financing commitments pursuant to this Section 6.12), in each case from and after such amendment, modification or replacement. (c) ~~Prior~~ Unless otherwise provided below, prior to the Closing, Seller and ~~▇▇▇▇▇▇ shall~~its Subsidiaries shall provide to Purchaser, ~~at Purchaser’s cost~~ and ~~expense~~shall use their reasonable best efforts to cause their respective directors, officers, employees, consultants, agents, financial advisors, attorneys, accountants and other representatives (collectively, “Representatives”) to, in each case, use reasonable best efforts ~~to, and~~ to ~~cause its Representatives to,~~ provide to ~~Purchaser such~~ Purchaser, all cooperation as that is reasonably requested by Purchaser in connection with the Debt Financing ~~(provided that such requested cooperation does not unreasonably interfere~~ or any debt securities being issued in conjunction with or in lieu of all or a portion of the ~~ongoing operations of Seller~~Debt Financing, ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following~~including using reasonable best efforts in connection with: (i) ~~assisting in preparation for~~ as promptly as reasonably practical, furnishing Purchaser with (A) the Required Information and ~~participation in customary marketing efforts related~~ (B) such other pertinent information (including financial information and other information to the ~~Financing~~ extent necessary in the preparation of an information package regarding the Business, in each case, to the extent reasonably available to Seller and its Subsidiaries without undue burden and expense to Seller and its Subsidiaries, regarding the Transferred Entities and the Business as may be reasonably requested by Purchaser in writing, and in any case, solely to the extent necessary to permit Purchaser to prepare a bank information memoranda or similar document, to consummate the ~~Alternative~~ Debt Financing~~, as applicable with prospective lenders, investors and ratings agencies~~, (ii) assisting ~~Purchaser and the Financing Sources in~~ with the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, bank information memoranda and similar documents required in connection with the Debt Financing, (iii) ~~furnishing~~ before the Closing and, to the extent reasonably necessary to allow Purchaser or any of its Affiliates to consummate the Debt Financing, using reasonable best efforts to obtain instruments relating to guarantees and other matters ancillary to the Debt Financing ~~Sources~~ as may be reasonably requested by Purchaser as necessary and customary in connection with the ~~Required Information; and~~ Debt Financing, (iv) ~~facilitating Purchaser’s~~ using reasonable best efforts to assist Purchaser in connection with its preparation of pro forma financial information to the extent required for the Debt Financing and to be included in any syndication documents, (v) executing and delivering as of the Closing, on behalf of the Transferred Entities and the Business, any necessary pledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Purchaser; provided that any obligations contained in all such agreements and documents shall be subject to the occurrence of the Closing and effective no earlier than the Closing, (vi) cooperating reasonably with the Financing Sources’ due diligence, to the extent customary and reasonable and participating in due diligence sessions, (vii) obtaining customary payoff letters, Lien terminations and instruments of discharge necessary to be delivered at the Closing to allow for the payoff, discharge or termination in full on the Closing Date of any debt necessary to evidence the release of liens or guarantees, (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Purchaser that are necessary or customary to permit the consummation of the Debt Financing and (ix) providing all documentation and other information about the Business and the Transferred Entities to the extent required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act, in each case, to the extent reasonably requested at least ten (10) Business Days prior to the anticipated Closing Date; provided, however, that Seller, its Subsidiaries and their respective Representatives shall not be required to authorize, execute, deliver or perform under any agreement with respect to the ~~pledging~~ Debt Financing that (A) unreasonably interferes with the ongoing business of ~~collateral~~Seller or its Subsidiaries; (B) causes any covenant, ~~if applicable. In addition, Seller will use its reasonable best efforts~~ representation or warranty in this Amended Agreement to ~~provide to Purchaser and the Financing Sources the Required Information~~ be breached in a manner ~~that~~that would cause any closing condition to Purchaser’s obligations to fail to be satisfied or otherwise causes the breach of this Amended Agreement (other than those conditions that by their terms are to be satisfied at the Closing); (C) requires Seller or its Subsidiaries to incur any liability (including, ~~taken as a whole~~without limitation, ~~does not contain~~ any ~~untrue statement of a material fact regarding~~ commitment fees and expense reimbursement) in connection with the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading Debt Financing, other than solely in the ~~light~~ case of the ~~circumstances under which such statements are made.~~ Transferred Entities, any liability that is contingent upon the occurrence of the Closing or that would be effective only on and after the Closing; (dD) ~~Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇,~~ requires Seller or its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing or adopt resolutions approving the agreements, documents, instruments and other actions pursuant to which the Debt Financing is obtained; (E) requires Seller or its Subsidiaries to give any legal opinion or other opinion of counsel; or (F) requires Seller or its Subsidiaries to take any action that is prohibited or restricted by, or will conflict with or violate, its organizational documents. Neither Seller nor any of ~~their respective Affiliates or other Representatives~~ its Subsidiaries shall be required to pay any commitment or other similar ~~fee, provide any security, execute any document,~~ fees or make any ~~representations, provide any indemnification~~ other out-of-pocket payment or incur any other ~~expense~~ liability or ~~Liability~~ obligation or provide or agree to provide any indemnity in connection with the Debt Financing or any of the ~~cooperation contemplated~~ foregoing in connection with the Debt Financing in connection with assisting Purchaser in arranging the Debt Financing or as a result of any information provided by ~~this Section 6.13(d)~~Seller, ~~(ii) none of ▇▇▇▇▇▇, Seller~~ its Subsidiaries or any of their respective Affiliates or ~~other~~ Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the ~~cooperation~~ Debt Financing. Seller, on behalf of the Business, hereby consents to the use of the Business’ logos in connection with the Debt Financing contemplated by ~~this Section 6.13(d~~the Debt Financing Commitment; provided, that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Business, Seller or its Subsidiaries. Purchaser agrees that any information regarding Seller or any of its Subsidiaries or Affiliates contained in any presentations, offering documents, teasers or other materials in connection with, or related to, the Debt Financing shall be subject to the prior review of Seller, which review shall be completed promptly after receipt thereof. (d) ~~and~~ Purchaser shall indemnify and hold harmless ~~▇▇▇▇▇▇~~Seller, ~~Seller and~~ its Affiliates, their respective ~~Affiliates~~ Subsidiaries and the Representatives of each of the foregoing (the “Financing Indemnitees”) from and against any and all ~~Liabilities~~ liabilities, losses, damages, claims, costs, expenses, awards, judgments, fines, interest, and penalties suffered or incurred by ~~any of~~ them in connection with the arrangement of the Debt Financing (including any replacement or ~~the cooperation contemplated by this Section 6.13(d~~alternative financing) and ~~(iv) none~~ the performance of ~~▇▇▇▇▇▇, Seller or~~ their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this ~~Agreement.~~Section 6.12 or any information utilized in connection therewith (other than directly arising from a material misstatement in, or material omission in, the information, taken as a whole, provided by or on behalf of the

Appears in 2 contracts

Sources: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)

Financing. (a) ~~Purchaser~~ (i) Subject to the terms and ~~Purchaser~~ conditions of this Agreement, each of Parent ~~each~~ and Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to~~ obtain and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) ~~contained~~ described in the ~~Commitment Letter, subject~~ Financing Letters pursuant to ~~any amendments or modifications thereto permitted by Section 6.13(b), (iii)~~ the terms thereof and satisfy ~~on a timely basis all~~ the conditions ~~applicable~~ to ~~Purchaser or its Affiliates contained~~ the Financing as described in the ~~Commitment Letter~~Financing Letters (including, ~~including~~ without limitation, the ~~payment~~ repayment of any ~~commitment, engagement or placement fees required as~~ indebtedness to the extent such repayment is a condition to the ~~Financing and due and payable by Purchaser or its Affiliates, (iv~~Debt Financing) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall ~~use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions~~ not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to be made to, or any waiver of any provision ~~or remedy~~ under, or any replacement of, the ~~Commitment Letter or Fee~~ Financing Letters if such termination, amendment, modification, waiver or ~~remedy~~ replacement (A) ~~adds~~ reduces (or could have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount and (y) after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 3.7 shall be true and correct)or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of Financing, or otherwise expands, amends or modifies any other provision of the Financing Letters, in a manner that would reasonably be expected to (x) 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 (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (Cy) adversely ~~affects in any material respect~~ impact the ability of ~~Purchaser~~ Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the ~~Commitment Letter~~ Financing Letters or the definitive agreements in with respect ~~thereof~~thereto; provided that Parent and Merger Sub may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or ~~(D) could otherwise reasonably be expected to prevent, impede or delay in any material respect~~ similar entities who had not executed the ~~consummation~~ Debt Commitment Letter as of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior date hereof. Parent shall promptly deliver to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors Company copies of any ~~of the foregoing~~such termination, ~~shall be required to pass resolutions~~ amendment, modification, waiver or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04replacement. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Zayo Group LLC), Merger Agreement (Abovenet Inc)

Financing. (a) ~~Purchaser~~ Parent and ~~Purchaser Parent each~~ Merger Sub shall use ~~its~~ their respective reasonable best efforts to arrange and consummate the Financing on the terms and conditions described in the Commitment Letter at or prior to the Closing (or on terms more favorable in the aggregate to Parent and Merger Sub) including by: (i) maintaining in effect and enforcing the Commitment Letter and complying with their respective obligations thereunder; (ii) negotiating, entering into and delivering the definitive agreements with respect to the Debt Financing (the “Definitive Financing Agreements”) on the terms and conditions contained in the Commitment Letter and, to the extent such definitive agreements are executed and delivered prior to the Effective Time, maintaining in effect and enforcing such definitive agreements; (iii) satisfying (or, if deemed advisable by Parent, seeking the waiver of) on a timely basis all terms, covenants and conditions set forth in the Commitment Letter and the Definitive Financing Agreements applicable to Parent and Merger Sub that are within their control; (iv) participating in and assisting with the preparation of rating agency presentations and meetings with rating agencies; and (v) upon satisfaction of all of the conditions precedent under Section 8.1 and Section 8.2 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), consummating or causing the consummation of the Financing including by enforcing their rights under the Commitment Letter and the Definitive Financing Agreements to the extent necessary at such time to fund the Required Amount. (b) Parent shall apprise the Company of material developments relating to the Financing and shall give the Company prompt notice of any material adverse change with respect to such Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within one (1) Business Day the same comes to the Knowledge of Parent, if at any time prior to the Closing Date (i) the Commitment Letter or any of the commitments with respect to the Debt Financing thereunder or any Definitive Financing Agreement, as applicable, shall expire or be terminated for any reason, (ii) for any reason, all or a portion of the Debt Financing becomes unavailable or (iii) any Financing Source or any other Person that is a party to any Commitment Letter breaches, defaults, terminates or repudiates any provisions thereunder or threatens in writing to do any of the foregoing. Parent and Merger Sub shall not amend, alter or replace, or agree to amend, alter or replace, the Commitment Letter in any manner that would (A) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing, (B) reduce the amount of cash proceeds from the Financing available to fund the Required Amount, in each case, in a manner that would materially adversely affect the ability of Parent, Merger Sub or their respective Affiliates to enforce their respective rights against the other parties to the Commitment Letter or the Definitive Financing Agreements or reasonably be expected to prevent or materially impair or delay the ability of Parent to consummate the transactions contemplated by this Agreement, in each case with respect to the foregoing sub-clauses (A) and (B) without the prior written consent of the Company (it being understood and agreed that Parent and Merger Sub may amend the Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date of this Agreement and to reflect assignments and replacements of lenders in accordance with the terms of the syndication provisions of the Commitment Letter with respect to the Debt Financing, provided that no such addition, assignment or replacement would reasonably be expected to prevent or materially impair or delay the ability of Parent to consummate the transactions contemplated by this Agreement). (c) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter for any reason, Parent and Merger Sub shall use their reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient, when taken together with the available cash of Parent, to fund the Required Amount and pay any related fees and expenses earned, due and payable as of the Closing Date (the “Alternate Financing”) and to obtain, and, if obtained, will provide the Company with true, correct and complete copies of, any new financing commitment that provides for at least the same amount of financing as such Commitment Letter as originally issued, to the extent needed to fund the Required Amount (the “Alternate Commitment Letter”). In the event any Alternate Financing is obtained and an Alternate Commitment Letter is entered into in accordance with this Section 7.10(c), (i) any reference in this Agreement to “Debt Financing” shall mean the debt financing contemplated by the Commitment Letter as modified pursuant to clause (ii) below, and (ii) any reference in this Agreement to the “Commitment Letter” (or defined terms that use such phrase) shall be deemed to include the Commitment Letter to the extent not superseded by an Alternate Commitment Letter, at the time in question and any Alternate Commitment Letter to the extent then in effect. In furtherance of and not in limitation of the foregoing, in the event that (i) any portion of the Financing structured as a capital markets financing is unavailable, regardless of the reason therefor and (ii) all closing conditions contained in Section 8.1 and Section 8.2 have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing, provided that such conditions are capable of being satisfied as of such day assuming the Closing was to occur on such day), then Parent or Merger Sub shall take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary~~necessary to consummate, ~~proper~~ or ~~advisable~~ cause to ~~obtain~~ be consummated, and shall use, or cause to ~~consummate~~ be used, the proceeds of the Bridge Financing in lieu of such capital markets financing no later than one (~~or any Alternative Financing~~1) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon Business Day following the satisfaction or waiver of the applicable conditions set forth in clause (ii) above to consummate the Closing when Parent and Merger Sub are required to do so pursuant to Section 2.2; it being understood that such obligations to use the Bridge Financing (including any alternative bridge financing contemplated by any Alternate Financing obtained in accordance with this Agreement) shall exist without regard to the then market conditions or other general economic conditions, ~~consummate~~ including the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, interest rate and ~~(vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement~~ cost of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken structured as a ~~whole, does~~ capital markets financing and regardless of whether or not ~~contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit~~ it is commercially reasonable to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are madedo so. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (LVB Acquisition, Inc.), Merger Agreement (Zimmer Holdings Inc)

Financing. (a) ~~Purchaser~~ Buyer shall not agree to any amendment, replacement, supplement or other modification of, or waive any of its rights under, any Commitment Letter or any definitive agreements related to any Financing, in each case, without the prior written consent of the Seller; provided that the Buyer may amend, replace, supplement or otherwise modify or waive its rights under any Commitment Letter or definitive agreement related to any Financing (including any replacement thereof in whole or in part with a high yield and/or high yield bridge financing) without the prior written consent of Seller so long as any such amendment, replacement, supplement, modification or waiver (i) does not reduce the aggregate amount of the Financing below an amount sufficient to consummate the transactions contemplated hereby and ~~Purchaser Parent each~~ pay related fees and expenses, (ii) does not impose new or additional conditions to the Financing that would be reasonably expected to delay or prevent the funding of the Financing, and (iii) does not adversely impact the ability of Buyer to timely consummate the transactions contemplated by this Agreement. Buyer shall use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable ~~to obtain and~~ (in each case, taking into account the expected timing of the Marketing Period) to consummate and obtain the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment ~~Letter~~ Letters (~~including~~ as such terms may be modified or adjusted in accordance with the ~~flex~~ terms hereof or of, and within the limits of, the “flex” provisions contained in any related ~~thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b~~fee letter), including (i) using ~~its~~ reasonable ~~best~~ efforts to (iw) maintain in effect the Commitment ~~Letter~~Letters in accordance with the terms and subject to the conditions thereof, (iix) negotiate and enter into definitive agreements with respect ~~to the Financing~~ thereto on the terms and conditions ~~(including the flex provisions)~~ contained ~~in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b)~~therein, (~~iii~~y) satisfy (or if deemed advisable by Buyer, seek waiver of) on a timely basis (taking into account the expected timing of the Marketing Period) all conditions applicable to ~~Purchaser or~~ Buyer that are within its ~~Affiliates contained~~ control set forth in ~~the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing~~ such definitive agreements and ~~due and payable by Purchaser or its Affiliates,~~ (ivz) upon ~~the~~ satisfaction ~~or waiver~~ of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, ; and (viii) ~~comply with~~ use commercially reasonable efforts to enforce its ~~obligations~~ rights under the Commitment ~~Letter~~Letters (provided that all conditions to Buyer’s obligations under this Agreement (except those to be satisfied at the Closing) have been satisfied or waived and the Marketing Period has ended). ~~If Purchaser~~ Buyer shall furnish correct and complete copies of all such definitive agreements to Seller promptly upon their execution. At Seller’s request, Buyer shall inform Seller in reasonable detail of the status of its efforts to obtain and consummate the Financing (including by providing substantially final draft agreements to the extent reasonably requested). Upon any such amendment, replacement, supplement, modification or ~~Purchaser Parent becomes aware~~ waiver of any ~~event or circumstance that makes procurement of any portion of~~ Commitment Letter in accordance with this Section 5.18(a), (A) the ~~Financing reasonably unlikely~~ term “Commitment Letter” shall, with respect to ~~occur in~~ the ~~manner or from the sources contemplated in~~ debt financing, mean the Commitment Letter, ~~Purchaser shall promptly (and~~ as so amended, replaced, supplemented, modified or waived in ~~any event within two (2~~accordance with this Section 5.18(a) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) ~~upon request~~Buyer shall promptly deliver correct and complete copies of such amendments, ~~otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts~~ replacements, supplements, modifications or waivers to ~~arrange the Financing or Alternative Financing~~Sellers. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Asset Purchase Agreement (Nexstar Broadcasting Group Inc), Asset Purchase Agreement (Nexstar Broadcasting Group Inc)

Financing. (a) The Debt Purchaser ~~and Purchaser Parent each~~ 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~~ necessary to obtain ~~and to consummate~~ the proceeds of the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the ~~Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Financing Commitments, including ~~using its reasonable best efforts~~ to (iA) maintain in effect the ~~Commitment Letter~~Financing Commitments, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iiiB) satisfy on a timely basis all conditions applicable to the Debt Purchaser to obtaining the Financing that is within its control (including by consummating the Equity Financing at or ~~its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition~~ prior to the ~~Financing and due and payable by Purchaser or its Affiliates~~Closing), (ivC) ~~upon~~ to the ~~satisfaction~~ extent not previously entered into, enter into definitive agreements with respect thereto on terms and conditions described in or ~~waiver of such conditions,~~ contemplated by the Financing Commitments and (D) consummate the Financing on at or prior to the Closing ~~Date,~~ (including by ~~drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with~~ seeking to enforce its ~~obligations~~ rights under the ~~Commitment Letter~~Roll-Over Commitments against the lenders and other persons providing the Roll-Over Commitments). If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, The Debt Purchaser shall ~~promptly (and in~~ not agree to or permit any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have amendment, replacement, supplement or other modification of, or waive any of ~~the effects prohibited pursuant to amendment by Section 6.13(b) (such financing~~its rights under, ~~the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1)~~ any ~~breach~~ Financing Commitment or ~~default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or~~ any definitive ~~financing~~ agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, in each case, without the Company’s prior written consent (Bwhich consent shall not be unreasonably withheld or delayed), provided that any such amendment, replacement, supplement or other modification to the Roll-Over Commitments (i) ~~modifies~~ does not involve any ~~existing~~ conditions to funding the ~~Financing in a manner~~ Roll-Over that ~~affects~~ are not contained in, and satisfied on the ~~consummation~~ date of ~~all~~ entry into, such amendment, replacement, supplement or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other ~~parties~~ modification to the ~~Commitment Letter or~~ same extent as, the ~~definitive agreements in respect thereof, or~~ Roll-Over Commitments and (Dii) ~~could otherwise reasonably be expected to~~ does not prevent, materially impede or materially delay ~~in any material respect~~ the consummation of the ~~Closing~~ Roll-Over or the ~~Transactions~~transactions contemplated by this Agreement or the TDC Agreement; and provided that the Debt Purchaser may replace and amend the Roll-Over Commitments solely for the purpose of adding lenders, lead arrangers, book runners, syndication agents or ~~(ii) undertake any merger~~similar entities who had not executed the Roll-Over Commitments as of the date of this Agreement so long as such addition does not prevent, ~~acquisition, joint venture, disposition, lease, Contract~~ materially impede or ~~debt or equity financing that could reasonably be expected to~~ materially ~~impair,~~ delay ~~or prevent~~ the consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing Roll-Over or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation transactions contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing Agreement or the ~~cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇~~TDC Agreement. Upon any such amendment, ~~Seller~~ replacement, supplement or ~~their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution~~ modification of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to Commitments in accordance with this Section ~~6.13(d)~~ 5.10, the term “Financing Commitments” shall ~~be subject to~~ mean the ~~Confidentiality Agreement and Section 6.04~~Financing Commitments as so amended, replaced, supplemented or modified. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Debt Restructuring Agreement (Hungarian Telecom LP), Debt Restructuring Agreement (Invitel Holdings a/S)

Financing. (a) Subject to the terms and conditions of this Section 6.15, Purchaser ~~and Purchaser Parent each~~ 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 ~~obtain and to consummate~~ arrange the Financing ~~(or any Alternative Financing)~~ as promptly as practicable and in a timely fashion on the terms and conditions described in the Commitment ~~Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Documents, including using its reasonable best efforts to (ia) maintain in effect the commitment for the Financing set forth in the Commitment ~~Letter~~Documents and comply with all covenants or agreements of Purchaser (and cause its Affiliates to comply with any covenant or agreement of any of its Affiliates) set forth in the Commitment Documents or any definitive documentation relating to the Financing, (iib) negotiate and ~~enter into~~ execute definitive agreements with respect ~~to the Financing~~ thereto on the terms and conditions contemplated by the Commitment Documents (including ~~the~~ any flex ~~provisions) contained~~ terms in the Commitment ~~Letter~~Documents) and otherwise on terms acceptable to Purchaser and its Financing Sources, ~~subject~~ (c) satisfy or obtain a waiver of (and cause its Affiliates to ~~any amendments~~ satisfy or ~~modifications thereto permitted by Section 6.13(b~~obtain such waiver), ~~(iii) satisfy~~ on a timely ~~basis~~ basis, all conditions applicable to Purchaser or and its Affiliates ~~contained~~ in such Commitment Documents and the ~~Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser~~ definitive agreements related thereto that are within its or its Affiliates’ control, (ivd) ~~upon~~ in the ~~satisfaction~~ event that all conditions to the commitment of any counterparty to the Commitment Documents providing such Financing have been satisfied (or ~~waiver of such conditions~~waived, as applicable), consummate the Financing on or prior to the Closing Date, and (e) use commercially reasonable efforts to cause the lenders and the other Person(s) providing the Financing to fund when required hereunder the Financing required to consummate the Transaction. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under the Commitment Documents (except in compliance with the flex provisions of the fee letters as in effect as of the date hereof), if such amendment, modification or waiver (i) reduces the aggregate amount of the Financing (including by ~~drawing~~ changing the amount of fees to be paid or original issue discount), to an amount below the amount required, together with all other financial resources by Purchaser, to consummate the transactions contemplated hereby on ~~any interim~~ the terms set forth in this Agreement, (ii) amends the existing, or ~~bridge financing facilities contemplated thereby~~imposes additional, conditions precedent to the Financing, (iii) would reasonably be expected to delay or prevent the Closing Date or make the funding of the Financing less likely to occur, (iv) imposes additional material obligations on Seller, or its Subsidiaries prior to the Closing Date or (v) ~~obtain such third-~~adversely impact the ability of Purchaser or any of its Affiliates, as applicable, to enforce its rights against the other parties to the Commitment Documents or the definitive agreements with respect to the Financing (the amendments described in the foregoing clauses (i) through (v), “Prohibited Amendments”). Purchaser shall deliver to Seller true and complete copies of any amendment, modification, supplement, consent or waiver to or under any of the Commitment Documents or the definitive agreements relating to the Financing promptly upon execution thereof other than amendments or modifications solely for the purpose of joining additional arrangers or financing sources following the date hereof to the extent effected pursuant to the terms of the Notes Offering Commitment Letter or the Loan Agreement, as applicable. Purchaser shall keep Seller informed on a current basis and in reasonable detail of the status of its efforts to arrange, and of any material developments concerning the timing of, the closing of the Financing. Purchaser shall give Seller notice (i) promptly after obtaining knowledge thereof, of any actual or likely material breach, violation, default, termination or repudiation by any party ~~consents as may be reasonably required in connection with~~ to any of the Commitment Documents or definitive documents related to the Financing, ~~and~~ (viii) ~~comply with~~ of its ~~obligations under~~ receipt of any written notice from any of its Financing Sources alleging a breach, violation default, termination or repudiation by any party to the Commitment ~~Letter~~Documents or any definitive document related to the Financing of any provisions of the Commitment Documents or any definitive document related to the Financing, (iii) the occurrence of an event or development that Purchaser expects to have a material and adverse impact on the ability of Purchaser to obtain all or any material portion of the Financing contemplated by the Commitment Documents, (iv) of any material dispute or disagreement between or among any parties to any of the Commitment Documents or any definitive document relating to the Financing 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) or (iv) otherwise, if the Financing contemplated by the Commitment Documents becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated therein, in whole or in part, for any reason (each of the foregoing clauses, a “Financing Failure Event”). As soon as reasonably practicable, but in any event within two Business Days of the date Seller delivers to Purchaser a written request, Purchaser shall provide to Seller any information reasonably requested by Seller relating to any Financing Failure Event. If ~~Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of~~ any portion of the Financing ~~reasonably unlikely to occur in~~ becomes unavailable on the ~~manner or from the sources~~ terms and conditions (including any applicable market flex provisions) contemplated in by the Commitment ~~Letter~~Documents and alternative financing (so long as the terms thereof are of the type that would not constitute a Prohibited Amendment) is not then made available in an amount equal to such portion, and such portion is required to pay the Purchase Price on the terms and conditions contemplated by this Agreement and to pay Purchaser’s fees and expenses related thereto, Purchaser shall promptly (notify Seller in writing and ~~in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and~~ Purchaser shall use its reasonable best efforts to arrange ~~as promptly as practicable any such portion~~ and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources on in an amount sufficient to consummate the Transactions with terms and conditions (including market flex provisions) not materially less ~~favorable in the aggregate~~ favorable, taken as a whole, to Purchaser ~~and its Affiliates~~ than the terms and conditions set forth in the Commitment ~~Letter and that would not have any~~ Documents, as promptly as practicable following the occurrence of such event but no later than the final day of the ~~effects prohibited pursuant~~ Marketing Period; provided, that in no event will the reasonable best efforts of Purchaser be deemed or construed to ~~amendment by Section 6.13(b) (such financing, the “Alternative Financing”).~~ require Purchaser ~~shall~~ to (A) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice~~ pay fees materially in excess of ~~(1) any breach or default by Purchaser or its Affiliates of~~ those contained in the Commitment ~~Letter~~Documents (including the market flex provisions) or agree to "market flex" terms, ~~Alternative Financing~~ materially less favorable to Purchaser than the corresponding market flex terms contained in or ~~definitive financing agreements related thereto, (2) any known breach or default~~ contemplated by ~~any party (other than Purchaser or its Affiliates) of~~ the Commitment ~~Letter, Alternative Financing~~ Documents or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) ~~upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed~~ enter into any alternative financing terms the terms of which are materially less favorable to Purchaser than the ~~status of Purchaser’s and its Affiliates’ efforts to arrange~~ terms contained in the ~~Financing or Alternative Financing~~Commitment Documents on the date hereof (taken as a whole). (b) Notwithstanding anything ~~to the contrary~~ contained in this Section 6.15 or in any other provision of this Agreement, in no event shall Purchaser ~~and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit~~ be required to amend or waive any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter terms or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letterconditions hereof. (c) ~~Prior~~ Subject, in each case, to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with rights of the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related parties to the ~~Financing or~~ Commitment Documents under the ~~Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser~~ terms thereof and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of definitive documentation with respect to the ~~pledging~~ Financing, none of ~~collateral~~the parties hereto in their capacities hereunder shall have any rights or claims against any Financing Source in connection with this Agreement, ~~if applicable~~the Commitment Documents, the Financing, the definitive documentation in connection thereto or any of the transactions contemplated thereby, and, without prejudice to the rights of each Financing Source pursuant to the Commitment Documents and the definitive documentation with respect to the Financing, each Financing Source, solely in its capacity as an agent, underwriter, purchaser, lender or arranger, shall not have any rights or claims against any party hereto or any related Person thereof, in connection with this Agreement, whether at law or equity, in contract, in tort or otherwise (other than with respect to enforcing their rights as third party beneficiaries of this Agreement). In ~~addition~~furtherance and not in limitation of the foregoing waiver, it is acknowledged and agreed that no Financing Sources shall have any liability for any claims or damages to any Seller ~~will use~~ or any of its ~~reasonable best efforts to provide to Purchaser and~~ Subsidiaries in connection with this Agreement, the Commitment Documents, the Financing ~~Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets~~ or the ~~Triage Business~~ transactions contemplated hereby or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are madethereby. (d) Notwithstanding anything in Section 10.10 to the ~~foregoing~~contrary, each of the parties hereto agrees that it will not bring or support any action (iwhether at law, in equity, in contract, in tort or otherwise) ~~none of ▇▇▇▇▇▇, Seller~~ against any Financing Sources or any ~~of their respective Affiliates~~ other Persons that have committed to provide or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability otherwise entered into agreements in connection with the Financing or ~~the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or~~ other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) financings in connection with the ~~cooperation~~ transactions contemplated hereby in any way relating to this Agreement or any of the transactions contemplated by this Agreement, including any dispute arising out of or in any way relating to the Commitment Documents or the performance thereof, in any forum other than the Supreme Court of the State of New York, County of New York, or, if under applicable law exclusive jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New York in the County of New York (and appellate courts thereof). The provisions of this Section ~~6.13(d~~6.15(d) ~~and~~ shall ~~indemnify and hold harmless ▇▇▇▇▇▇~~be enforceable by each Financing Source, ~~Seller~~ its Affiliates and their respective ~~Affiliates from~~ successors and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04permitted assigns. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser~~ conditions of this Agreement, without the consent of the Company each of Parent and Merger Sub will not permit any amendment, replacement, supplement or modification to be made to, or any waiver of any provision or remedy pursuant to, the Commitment Letters prior to the Effective Time if such amendment, replacement, supplement, modification or waiver would, or would reasonably be expected to, (i) reduce the aggregate net amount of the Financing below the Required Financing Amount, including by changing the amount of the fees to be paid or the original issue discount of the Debt Financing; (ii) impose 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 reasonably be expected to (1) materially delay or prevent the Closing of the Merger or (2) make the timely funding of the Financing, or the satisfaction of the conditions to obtaining the Financing, less likely to occur in any material respect; or (iii) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Commitment Letters or the definitive agreements with respect thereto; provided, that for the avoidance of doubt no consent from the Company shall be required for: (1) any amendment, replacement, supplement or modification of the Debt Commitment Letters that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (2) the implementation of a Replacement Commitment Facility (as defined in the Debt Commitment Letter entered into as of the date hereof) so long as doing so would not reasonably be expected to result in any of the outcomes described in the foregoing clauses (i)-(iii), (3) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof, (4) Parent or any Subsidiary thereof to issue senior notes or other securities in lieu of all or a portion of the senior bridge facility referred to in the Debt Commitment Letter as of the date of this Agreement or the issuance of preferred equity at the Closing (in lieu of the senior notes or other debt securities in lieu of a portion of the senior bridge facility) to Permitted Preferred Purchasers, or (5) Permitted Co-Investors being added to the Equity Commitment Letter or delivering an equity commitment letter of their own in substantially similar form (except for amount) to the Equity Commitment Letter for a portion of the Equity Financing; and provided further, notwithstanding the foregoing or anything to the contrary in this Agreement, in no event in and of itself shall a Permitted Co-Investor becoming, or seeking to become (including in connection with seeking any Approval required to become in connection with the Merger), a direct or indirect equity investor in Parent or its affiliates after the date of this Agreement and effective prior to or as of the Closing be deemed to result in the outcomes described in the foregoing clauses (i)-(iii). Parent shall promptly furnish to the Company a copy of any amendment, replacement, supplement, modification or waiver relating to the Commitment Letters. Any reference in this Agreement to (x) the “Financing” will include the financing contemplated by the Commitment Letters as amended, replaced, supplemented or modified; and (y) “Equity Commitment Letter,” “Debt Commitment Letters” or “Commitment Letters” will include such documents as amended or modified. (b) Subject to the terms and conditions of this Agreement, each ~~shall~~ of Parent and Merger Sub will use its 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 and advisable to arrange, consummate and obtain ~~and to consummate~~ the Financing on a timely basis (or taking into account the Marketing Period), but in any ~~Alternative Financing)~~ event no later than the Effective Time, on the terms and conditions (including, to the extent required, the full exercise of any “flex” provisions in any Fee Letter) described in the Commitment ~~Letter (including the flex provisions related thereto)~~Letters, ~~subject to any amendments or modifications thereto permitted by Section 6.13(b)~~including, ~~including~~ but not limited to, using its reasonable best efforts to (i) maintain in effect the Commitment ~~Letter,~~ Letters in accordance with the terms and subject to the conditions thereof; (ii) ~~negotiate~~ negotiate, execute and ~~enter into~~ deliver definitive agreements with respect to the Debt Financing contemplated by the Debt Commitment Letter and related Fee Letter on a timely basis (taking account of the Marketing Period) on the terms and conditions (including ~~the flex provisions) contained~~ any “flex” provisions in the related Fee Letter) contemplated by the Debt Commitment ~~Letter, subject~~ Letter and related Fee Letter (or any other terms acceptable to ~~any amendments or modifications thereto permitted by~~ Parent so long as Parent remains in compliance with Section ~~6.13(b~~5.13(a), ); (iii) satisfy (or obtain the waiver of) on a timely basis all conditions ~~applicable to Purchaser or its Affiliates~~ contained in the Debt Commitment ~~Letter, including~~ Letter and related Fee Letter and such definitive agreements related thereto within the ~~payment~~ control of ~~any commitment, engagement~~ Parent or ~~placement fees required as a condition to~~ Merger Sub and in the ~~Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing~~ Equity Commitment Letter on or prior to the Effective Time; (iv) in the event that all conditions contained in the Commitment Letters (other than, with respect to the Debt Financing, the availability of the cash equity contribution) have been satisfied and Parent is required to consummate the Closing ~~Date~~pursuant to Sections 6.1 and 6.2 and the Marketing Period has been completed, consummate the Financing at or prior to the Closing, including ~~by drawing on any interim or bridge financing facilities contemplated thereby,~~ using reasonable best efforts to cause the Lenders to fund the Debt Financing at the Closing; (v~~) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi~~) comply with its obligations ~~under~~ pursuant to the Commitment ~~Letter~~Letters on or prior to the Effective Time; and (vi) enforce its rights pursuant to the Commitment Letters. ~~If Purchaser~~ Parent and Merger Sub will fully pay, or ~~Purchaser~~ cause to be fully paid, all commitment or other fees arising pursuant to the Commitment Letters as and when they become due. (c) Parent ~~becomes aware of any event or circumstance that makes procurement of any portion~~ shall (i) keep the Company informed on a current basis and in reasonable detail of the ~~Financing reasonably unlikely~~ status of its efforts to ~~occur~~ arrange the Financing; and (ii) provide the Company with copies of all definitive agreements and other documents related to the Debt Financing. Without limiting the generality of the foregoing, Parent and Merger Sub must give the Company prompt notice in ~~the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly~~ writing (~~and~~ but in any event within two (2) Business ~~Days~~Days after obtaining knowledge of the occurrence or discovery of) (A) of any breach (or threatened breach), default (or any event or circumstance that, with notice or lapse of time or both, could reasonably be expected to give rise to any breach or default), cancellation, termination or repudiation by any party to the Commitment Letters or definitive agreements related to the Financing; (B) of the receipt by Parent or Merger Sub of any oral or written notice or communication from any Lender Related Party with respect to any (1) actual or threatened breach, default, cancellation, termination or repudiation (or notice or communications from lenders or other sources of Debt Financing to Parent or Merger Sub of any such actual or threatened breach, default, cancellation, termination or repudiation received by Parent or Merger Sub) by any party to the Commitment Letters or any definitive agreements related to the Financing of any provisions of the Commitment Letters or such definitive agreements; or (2) material dispute or disagreement between or among any parties to the Commitment Letters or any definitive agreements related to the Financing that Parent believes in good faith would reasonably be expected to be adverse to the timely completion of the Financing; and (C) if for any reason Parent or Merger Sub at any time believes that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Commitment Letters or any definitive agreements related to the Financing. Parent shall provide any information reasonably requested by the Company relating to any of the circumstances referred to in the previous sentence as promptly as reasonably practical after the date that the Company delivers a written request therefor to Parent; provided, however, that Parent shall not be required to furnish such information if Parent in good faith reasonably believes that doing so would reasonably be expected to (a) result in the loss of attorney-client privilege or rights under the attorney work product doctrine, (b) breach or violate any applicable Law or Legal Requirement or (c) violate any confidentiality obligation with respect to such information. (d) If any portion of the Debt Financing becomes unavailable (other than as a result of a breach by the Company of this Agreement), on the terms and conditions (including any “flex” and “securities demand” provisions in any Fee Letter) contemplated in the Debt Commitment Letter and related Fee Letter, Parent will promptly notify ~~▇▇▇▇▇▇~~ the Company in writing (but in any event within two (2) Business Days after obtaining knowledge of the occurrence or discovery thereof) and ~~Seller~~ Parent and ~~shall~~ Merger Sub will use ~~its~~ their respective reasonable best efforts ~~to arrange~~ to, as promptly as reasonably practicable ~~any~~ following the occurrence of such event, (i) arrange and obtain the Debt Financing or such portion of the Debt Financing from the same or alternative sources (A) on terms and conditions not materially less favorable in the aggregate to ~~Purchaser~~ Parent and ~~its Affiliates~~ Merger Sub than ~~the terms and conditions set forth~~ those contained in the Debt Commitment Letter and related Fee Letter and (B) containing conditions to draw at Closing that would not ~~have any of~~ reasonably be expected to adversely affect the ~~effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of~~ availability thereof that (1) ~~any breach or default by Purchaser or its Affiliates of~~ are not more onerous than those conditions and terms contained in the Debt Commitment Letter and related Fee Letter~~, Alternative Financing or definitive financing agreements related thereto~~, (2) would not reasonably be expected to prevent or materially delay the Closing or make the Closing materially less likely to occur, and (3) in an amount at least equal to the Debt Financing or such unavailable portion thereof, but in no event more than the Required Financing Amount if such amount is less, as the case may be (the “Alternate Debt Financing”); and (ii) obtain one or more new debt financing commitment letters with respect to such Alternate Debt Financing (the “New Debt Commitment Letters”), which new letters will replace the existing Debt Commitment Letter in whole or in part; provided that in no event shall the reasonable best efforts of Parent be deemed or construed to require Parent to (A) seek cash equity from any ~~known breach or default by any party (~~source other than ~~Purchaser or its Affiliates) of~~ those counterparty to the Equity Commitment Letter, ~~Alternative Financing~~ or ~~definitive financing agreements related thereto~~in any amount with respect to a Guarantor in excess of such Guarantor’s commitment, (3B) pay any ~~purported termination~~ fees in excess of those contemplated by the Commitment Letters, or ~~repudiation by any party~~ (C) agree to economic terms of the Alternate Debt Financing (including any “flex” provisions relating thereto) that are less favorable in the aggregate than those contemplated by the Debt Commitment ~~Letter, Alternative Financing~~ Letter or ~~definitive financing~~ any related Fee Letter (after giving effect to any “flex” provisions therein). Parent will promptly provide a copy of any New Debt Commitment Letter (and any fee letter in connection therewith or other agreements related thereto or (4with customary redactions)) ~~the receipt of notice of any material dispute or disagreement between or among the parties~~ to the Company. In the event that any New Debt Commitment Letters are obtained, (A) any reference in this Agreement to the “Commitment Letters” or the “Debt Commitment Letter~~, Alternative Financing or definitive financing agreements related thereto,~~ ” will be deemed to include the Debt Commitment Letter to the extent not superseded by a New Debt Commitment Letter at the time in question and any New Debt Commitment Letters to the extent then in effect; and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything any reference in this Agreement to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the “Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter ” or the ~~definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect~~ “Debt Financing” means the ~~consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or~~ debt ~~or equity~~ financing ~~that could reasonably be expected to materially impair, delay or prevent consummation of the Financing~~ contemplated by the Debt Commitment Letter ~~or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior~~ as modified pursuant to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) ~~In no event shall~~ Subject to, and without limiting or modifying the ~~receipt or availability~~ provisions of Section 8.12(b), Parent and Merger Sub agree that obtaining the ~~Financing, Alternative~~ Financing ~~or any other funds or financing by Purchaser or any of its Affiliates be~~ is not a condition to ~~any of Purchaser~~Parent’s or ~~Purchaser Parent~~Merger Sub’s obligations ~~under this Agreement~~hereunder.

Appears in 2 contracts

Sources: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)

Financing. (a) ~~Purchaser~~ Each of Anthem and ~~Purchaser Parent each~~ Cigna 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 ~~obtain and to consummate~~ arrange the Financing ~~(or any Alternative Financing) on the terms~~ and ~~conditions~~ related transactions described in the Commitment ~~Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Letter, including using ~~its~~ reasonable best efforts to (i~~) maintain in effect the Commitment Letter, (ii~~) negotiate and enter into definitive agreements with respect ~~to the Financing~~ thereto on the terms and conditions contemplated by the Commitment Letter (~~including~~ or with other terms and conditions agreed by Anthem, Cigna and the ~~flex provisions~~Financing Parties), (ii) satisfy (or obtain a waiver of) on a timely basis all conditions to obtaining the Financing set forth therein, (iii) consummate the Financing at or prior to the Closing and (iv) with respect to Anthem, enforce its rights under the Commitment Letter and the definitive agreements relating to the Financing. (b) Notwithstanding Section 5.14(a), Anthem shall have the right from time to time to amend, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter, or enter into other financing arrangements as an alternative to the Financing; provided that Anthem shall not enter into any such amendment, supplement, modification, waiver or alternative if such amendment, supplement, modification, waiver or alternative imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing, or otherwise expands, amends or modifies any other provision of the Commitment Letter, in a manner that would (i) materially and adversely affect the ability of Anthem to fund its obligations when due under this Agreement or (ii) materially and adversely affect the ability of Anthem to enforce its rights under the terms of the Commitment Letter or the definitive agreements with respect thereto; provided, further, that Anthem may amend the Commitment Letter or the definitive agreements with respect thereto to add additional lenders, arrangers, bookrunners, and agents or in a manner that would not materially adversely affect the ability of Anthem to fund its obligations when due under this Agreement. (c) Anthem and Cigna shall, and shall cause their respective Subsidiaries to, refrain from taking, directly or indirectly, any action that would reasonably be expected to result in the failure of any of the conditions contained in the Commitment Letter or in any definitive agreement related to the Financing. (d) Each of Anthem and Cigna shall give the other party prompt written notice (i) of any actual or threatened breach, default, termination or repudiation by any party to the Commitment Letter or definitive documents related to the Financing of which such party becomes aware and (ii) of the occurrence of an event or development that would reasonably be expected to adversely impact the ability to obtain all or any portion of the Financing contemplated by the Commitment Letter. (e) If Anthem or Cigna becomes aware that any portion of the Financing becomes unavailable on the terms and conditions contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment each of ~~any commitment, engagement or placement fees required as a condition to the Financing~~ Anthem and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and Cigna shall use its reasonable best efforts to arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources in an amount sufficient to consummate the Mergers as promptly as practicable ~~any~~ following the occurrence of such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and event; provided, however, that ~~would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (~~such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent replacement commitment shall not, without the prior written consent of ~~▇▇▇▇▇▇~~each of Anthem and Cigna (which shall not be unreasonably withheld, ~~(i) permit~~ conditioned or delayed), be subject to any ~~termination, amendment~~ additional or ~~modification to,~~ modified conditions or ~~any waiver~~ other contingencies to the funding of ~~any provision or remedy under,~~ the Financing than those contained in the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise be reasonably be expected to ~~prevent~~prevent or materially impede, ~~impede~~ interfere with, hinder or delay ~~in any material respect~~ the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letterMergers. (cf) ~~Prior to the Closing, Seller~~ Each of Anthem and ~~▇▇▇▇▇▇ shall, at Purchaser’s cost and expense,~~ Cigna shall use its respective reasonable best efforts to, and to cause ~~its Representatives~~ their respective representatives to, on a timely basis, provide ~~to Purchaser such~~ all reasonable cooperation as requested by other party or the Financing Parties that is reasonably ~~requested by Purchaser~~ necessary and customary to assist in connection with obtaining the Financing ~~(provided that~~ if such requested cooperation does not unreasonably interfere with the ongoing operations of ~~Seller~~Anthem or Cigna, ~~▇▇▇▇▇▇ and their respective Affiliates)~~as applicable. ~~Such assistance~~ Without limiting the generality of the foregoing, such cooperation shall in any event include ~~the following~~using reasonable best efforts with respect to: (i) ~~assisting~~ participating in ~~preparation for~~ a reasonable number of meetings and ~~participation~~ drafting sessions, and participating in reasonable and customary ~~marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies~~due diligence, (ii) ~~assisting Purchaser and~~ furnishing the Financing ~~Sources~~ Parties with such financial and other pertinent information as may be reasonably requested to consummate the Financing, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and applicable to a registration statement under the Securities Act on Form S-3, including delivery of (A) audited consolidated balance sheets and related audited statements of income, stockholders’ equity and cash flows of Cigna for each of the three fiscal years most recently ended at least 90 days prior to the Closing Date and (B) unaudited consolidated balance sheets and related unaudited statements of income, stockholders’ equity and cash flows of Cigna for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, (iii) assisting the Financing Parties in the preparation of (AI) ~~a customary~~ an offering ~~document, private placement memorandum and/or bank information memorandum and similar marketing documents~~ document for any portion of the Financing ~~or the Alternative Financing, as applicable,~~ and (BII) materials for rating agency ~~presentations~~presentations and providing customary authorization letters related thereto, ~~(iii) furnishing Purchaser and the Financing Sources the Required Information; and~~ (iv) ~~facilitating Purchaser~~obtaining customary financing accountants’ comfort letters and consents of accountants from Cigna’s ~~preparation~~ independent public accounting firm for use of ~~documentation with respect~~ their reports in any materials relating to the ~~pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser~~ Financing and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with any filings required to be made by Anthem pursuant to the Securities Act (including any registration statement) relating to the Financing ~~or the cooperation contemplated by this Section 6.13(d),~~ and (iiv) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection reasonably cooperating with the ~~cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against~~ marketing efforts for any ~~and all Liabilities incurred by any~~ portion of ~~them in connection with~~ the ~~Financing or the cooperation contemplated by this Section 6.13(d~~Financing. For purposes of clauses (f) and (ivg) ~~none~~ of ~~▇▇▇▇▇▇~~this Section 5.14 only, ~~Seller or their respective Affiliates, or any Persons who are directors of any of~~ “Financing” shall include the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior financings expressly contemplated pursuant to the ~~Closing or agree to~~ Commitment Letter, including any ~~change or modification~~ issuance(s) of ~~any existing certificate, document, instrument or agreement that is effective prior to~~ Takeout Securities and Term Facilities (as both terms are defined in the ~~Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04~~Commitment Letter). (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Cigna Corp), Merger Agreement

Financing. (a) Schedule 5.10 of the Purchaser Disclosure Letter sets forth a true and ~~Purchaser Parent each shall use its reasonable best efforts~~ complete copy of the executed Debt Commitment Letter (including all exhibits, annexes and other attachments thereto, but excluding any fee letter) pursuant to ~~take~~which, ~~or cause~~ and subject to ~~be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain and to consummate the Financing (or any Alternative Financing) on~~ the terms and conditions ~~described in~~ of which, the ~~Commitment Letter (including~~ lender parties thereto have committed to lend the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect amounts set forth therein to the ~~Financing on the terms~~ Purchaser and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or certain of its Affiliates ~~contained in~~ for the ~~Commitment Letter, including the payment~~ purpose of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Debt Financing. (b) ~~Notwithstanding anything to~~ As of the ~~contrary in~~ date of this Agreement, the Debt Commitment Letter is in full force and effect and has not been withdrawn or terminated, or otherwise amended, supplemented or modified in any respect. The Debt Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of the Purchaser and ~~Purchaser~~ its Affiliates party thereto and, to the knowledge of the Purchaser, the other parties thereto, enforceable in accordance with its terms against each party thereto, subject to the Enforceability Exceptions. Except for fee letters relating to fees with respect to the Debt Financing (true and complete copies of which have been provided to the Parent ~~shall not~~Seller, ~~without~~ with fee amounts, pricing caps and certain economic terms of the ~~prior written consent~~ market flex (none of ~~▇▇▇▇▇▇~~which would adversely affect the amount or availability of the Debt Financing) redacted), ~~(i) permit any termination~~as of the date of this Agreement, ~~amendment or modification to~~there are no other agreements, side letters, or ~~any waiver~~ arrangements relating to the Debt Financing that could affect the availability of the Debt Financing other than as expressly set forth in the Debt Commitment Letter. No event has occurred which, with or without notice, lapse of time or both, would constitute a failure of any ~~provision or remedy under,~~ condition of the Debt Commitment Letter or ~~Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing~~ result in ~~a manner that affects the consummation of all or~~ any portion of the Debt Financing being unavailable on the Closing Date or a default or breach on the part of the Purchaser under any term or condition of the Debt Commitment Letter, and the Purchaser has no reason to ~~below~~ believe that it will be unable to satisfy, on a ~~level that would impair Purchaser’s ability~~ timely basis, any term or condition of closing to be satisfied by it contained in the Debt Commitment Letter. The Purchaser has fully paid any and all commitment fees or other fees required by the Debt Commitment Letter to be paid on or before the date of this Agreement. The aggregate proceeds from the Debt Financing constitute all of the financing required for the Purchaser to consummate the ~~Transactions, (B) reduces the committed amount~~ transactions contemplated by this Agreement at Closing. The Debt Commitment Letter contains all of the ~~Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties~~ conditions precedent to the ~~Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation~~ obligations of the ~~Closing~~ parties thereunder to make the Debt Financing available to the Purchaser on the terms therein. As of the date of this Agreement, the Purchaser does not know of any facts or ~~the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing~~ circumstances that could reasonably be expected to ~~materially impair, delay or prevent consummation~~ result in any of the ~~Financing contemplated by~~ conditions set forth in the Debt Commitment Letter not being satisfied. As of the date hereof, to the extent this Agreement must be in a form acceptable to any Lender, such Lender or ~~any Alternative Financing contemplated by any new debt commitment letter~~Lenders have approved this Agreement. (c) ~~Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at~~ The Purchaser’s ~~cost and expense~~obligations under this Agreement are not subject to any conditions regarding the Purchaser’s, ~~use reasonable best efforts to~~its Affiliates’, ~~and to cause its Representatives to~~or any other Person’s (including, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the ~~Financing or~~ avoidance of doubt, the ~~Alternative Financing, as applicable, and~~ Sellers’ (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their ~~respective Affiliates or other Representatives shall be required~~ Affiliates’) ability to ~~pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with~~ obtain financing for the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any consummation of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04Contemplated Transactions. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Stock and Asset Purchase Agreement (Houghton Mifflin Harcourt Co), Stock and Asset Purchase Agreement (Scholastic Corp)

Financing. (a) ~~Purchaser~~ SJW shall, and ~~Purchaser Parent each~~ shall cause its Affiliates to, use ~~its~~ their respective reasonable best efforts to take, or cause to be taken, all ~~actions~~ actions, and to do, or cause to be done, as promptly as possible, all things necessary, proper or advisable to ~~obtain and to~~ consummate the Financing (or any ~~Alternative Financing)~~ Substitute Financing on or prior to the ~~terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Closing Date, including ~~using its reasonable best efforts to~~ (i) ~~maintain~~ maintaining in effect the Commitment ~~Letter~~Letter until the Closing (provided that the Commitment Letter may be amended, supplemented, modified and replaced as permitted pursuant to this Section 6.12), (ii) ~~negotiate~~ negotiating and ~~enter~~ entering into definitive agreements with respect to the Financing on the terms and conditions ~~(including the flex provisions)~~ contained in the Commitment ~~Letter~~Letter (including any “flex” provisions related thereto) or on such other terms acceptable to SJW and its Financing Sources (provided that such other terms could not reasonably be expected to (x) reduce the aggregate amount of the Financing or the net cash proceeds from the Financing (including by increasing the amount of fees to be paid or original issue discount) below the amount required by SJW to consummate the transactions contemplated by this Agreement, ~~subject~~ (y) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that could reasonably be expected to (i) delay or prevent or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) or (ii) adversely impact the ability of SJW to enforce its rights against the Financing Parties or any ~~amendments~~ other parties to the Commitment Letter or ~~modifications thereto permitted~~ the definitive agreements with respect thereto, or (z) make it less likely that the Financing would be funded (including by ~~Section 6.13(b)~~making the conditions to obtaining the Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of SJW to consummate the Merger and the other transactions contemplated hereby on the Closing Date) so that such agreements are in effect no later than the Closing, (iii) ~~satisfy on a timely basis~~ satisfying all the conditions ~~applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition~~ to the Financing ~~and due and payable by Purchaser~~ within the control of SJW at or ~~its Affiliates~~prior to the Closing, (iv) ~~upon the satisfaction or waiver of such conditions, consummate the Financing on or prior~~ accepting to the ~~Closing Date~~fullest extent all “market flex” contemplated by the Commitment Letter (or any fee letter relating thereto), ~~including by drawing on any interim or bridge financing facilities contemplated thereby,~~ to the extent deemed necessary under the Commitment Letter and (v) ~~obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with~~ enforcing its ~~obligations~~ rights under the Commitment Letter. ~~If Purchaser or Purchaser Parent becomes aware of any~~ In the event ~~or circumstance~~ that ~~makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated~~ all conditions set forth in the Commitment ~~Letter~~Letter have been satisfied (other than the consummation of the Merger) or, ~~Purchaser~~ upon funding shall be satisfied, SJW and its Affiliates shall use their reasonable best efforts to cause the Persons providing the Financing (the “Financing Parties”) to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby. SJW shall, promptly after obtaining knowledge thereof (and in any event within two ~~(2)~~ Business Days), give CTWS written notice of any (A) ~~notify ▇▇▇▇▇▇~~ breach (or threatened 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) amendment or modification of, or waiver under, the Commitment Letter or (D) change, circumstance or event which causes SJW to believe that it will not be able to timely obtain all or any portion of the Financing on the terms, in the manner or from the Financing Parties or sources contemplated by the definitive documents related to the Financing, to the extent the proceeds thereof are required to consummate the Merger and ~~Seller~~ the other transactions contemplated hereby. SJW shall (i) keep CTWS informed on a reasonably current basis of the status of its efforts to arrange the Financing, and (ii) provide CTWS with copies of all executed material definitive agreements related to the Financing. SJW shall, and shall use its reasonable best efforts to cause the Financing Sources to, provide CTWS and its Representatives with such access to SJW and the Financing Sources as CTWS and its Representatives may reasonably request for the purpose of allowing CTWS and its Representatives to understand the status of SJW’s efforts to arrange the Financing; provided, that SJW and its Representatives shall be permitted to participate in any such discussions or communications. Neither SJW nor its Affiliates shall amend, modify or replace the Commitment Letter without the prior written approval of CTWS to the extent such amendment, modification or replacement could reasonably be expected to (I) reduce the aggregate amount of the Financing or the net cash proceeds from the Financing (including by increasing the amount of fees to be paid or original issue discount) below the amount required by SJW to consummate the transactions contemplated by this Agreement, (II) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that could 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) or (2) adversely impact the ability of SJW to enforce its rights against the Financing Parties or any other parties to the Commitment Letter or the definitive agreements with respect thereto, or (III) make it less likely that the Financing would be funded (including by making the conditions to obtaining the Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of SJW to consummate the Merger and the other transactions contemplated hereby on the Closing Date; provided that notwithstanding the foregoing, SJW may modify, supplement or amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (that have not executed the Commitment Letter as of the Execution Date). 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 SJW on the terms and conditions set forth therein and, in each case, such funds are required by SJW to consummate the transactions contemplated by this Agreement, SJW shall, and shall cause its Affiliates, as promptly as practicable (and in any event within two Business Days) following the occurrence of such ~~portion from alternative sources~~ event to (x) notify CTWS in writing thereof and (y) use its reasonable best efforts to obtain substitute financing on terms and conditions not materially less favorable in the aggregate to ~~Purchaser and its Affiliates~~ SJW than ~~the terms and conditions~~ those set forth in the Commitment Letter and ~~that would not have any of~~ in an amount sufficient to enable SJW to consummate the ~~effects prohibited pursuant to amendment by Section 6.13(b)~~ Merger and the other transactions contemplated hereby in accordance with its terms (~~such financing,~~ the “~~Alternative~~ Substitute Financing”). ~~Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1)~~ In the event that new commitment letters are entered into in accordance with any ~~breach~~ amendment, replacement, supplement or ~~default by Purchaser or its Affiliates~~ other modification of the Commitment ~~Letter~~Letter (including in connection with any Substitute Financing) permitted pursuant to this Section 6.12, ~~Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates)~~ such new commitment letters shall be deemed to be a part of the “Financing” and deemed to be the “Commitment Letter~~, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party~~ ” for all purposes of ~~the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice~~ this Agreement. SJW shall promptly deliver to CTWS copies of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or ~~remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion~~ replacement of the ~~Financing~~ Commitment Letter (including in connection with any Substitute Financing). (b) SJW shall pay, or cause to ~~below a level~~ be paid, as the same shall become due and payable, all fees and other amounts that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to become due and payable under the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letterrelated fee letters. (c) ~~Prior~~ Notwithstanding anything contained in this Agreement to the ~~Closing~~contrary, ~~Seller~~ SJW expressly acknowledges and ~~▇▇▇▇▇▇~~ agrees that SJW’s obligations hereunder are not conditioned in any manner upon SJW obtaining the Financing, any Substitute Financing or any other financing. The failure, for any reason, of SJW to have sufficient cash available on the Closing Date to pay the consideration in Merger Consideration in accordance with Article II or the failure to so pay the Merger Consideration on the Closing Date in accordance with the terms and conditions of this Agreement shall constitute a breach of this Agreement by SJW. (d) CTWS shall, ~~at Purchaser’s cost~~ and ~~expense~~shall cause each of the CTWS Subsidiaries to, and shall use its reasonable best efforts ~~to, and~~ to cause its and their Representatives to, provide to ~~Purchaser~~ SJW such ~~cooperation~~ customary cooperation, at SJW’s sole expense, as is may be reasonably requested by ~~Purchaser~~ SJW in connection with the Financing (which term, for purposes of this Section 6.12(d), shall include any Substitute Financing and any issuance of debt or equity securities issued or incurred in lieu of any Financing or Substitute Financing), which efforts shall include using reasonable best efforts to: (i) cause its management team, with appropriate seniority and expertise, including its senior executive officers, and independent accountants to assist SJW in SJW’s preparation for and to participate in a reasonable number of meetings (including customary one-on-one meetings), presentations, road shows, due diligence sessions, drafting sessions and sessions with lenders, investors and rating agencies, in each case, upon reasonable notice and at times and locations to be mutually agreed upon; (ii) assist SJW with SJW’s preparation of customary rating agency presentations, road show materials, bank information memoranda, credit agreements, registration statements, prospectuses, bank syndication materials, offering documents, private placement memoranda and similar documents customarily required in connection with the Financing, including the marketing and syndication thereof, provided, that any such bank information memoranda, registration statements, prospectuses, bank syndication materials, offering documents, private placement memoranda and similar documents shall contain disclosure and pro forma financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor; (iii) furnish SJW and the Financing Sources with all Required Information and, as may be reasonably requested by SJW in connection with the Financing, other customary financial and other information regarding CTWS and its Subsidiaries; (iv) assist SJW with SJW’s preparation of pro forma financial information and projections (it being understood that CTWS shall not be responsible for the preparation of such pro forma financial information or projections themselves); (v) reasonably cooperate with the marketing efforts for any portion of the Financing, including using its reasonable best efforts to ensure that any syndication efforts benefit from its existing lending relationships and using reasonable best efforts to assist SJW in obtaining any corporate credit and corporate family ratings in connection with the Financing; (vi) furnish SJW at least three Business Days prior to the Closing Date (to the extent requested within 10 Business Days prior to the Closing Date) with all documentation and other information required by Governmental Entities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and 31 C.F.R. § 1010.230; (vii) assist in preparing schedules thereto as may be reasonably requested by SJW; (viii) provide customary authorization letters authorizing the distribution of information provided by CTWS to prospective lenders and containing a customary representation to the Financing Sources for the Financing that such ~~requested cooperation~~ information provided by CTWS 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 CTWS and CTWS Subsidiaries or its or their securities; and (ix) request the independent accountants of CTWS to render customary “comfort letters” (including customary negative assurance comfort) with respect to financial information regarding CTWS and its Subsidiaries contained in any materials relating to the Financing (it being understood that failure of SJW to obtain such comfort letters shall not constitute a breach of this Section 6.12), and to provide consents for use of their reports and opinions in any documents filed or furnished by SJW with the SEC or in any other materials or disclosures relating to the Financing in which financial information of CTWS and its Subsidiaries is included. (e) Notwithstanding anything to the contrary contained in this Agreement (including this Section 6.12): (i) nothing in this Agreement (including this Section 6.12) shall require any such cooperation to the extent that it would (A) require CTWS, any of the CTWS Subsidiaries or its Representatives, as applicable, to breach, waive or amend any terms of this Agreement, (B) require cooperation from CTWS, any of the CTWS Subsidiaries or its Representatives to the extent it would cause any condition to the Closing set forth in Article VII not to be satisfied, (C) unreasonably interfere with the ongoing business or operations of ~~Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include~~ CTWS and/or any of the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agenciesCTWS Subsidiaries, (iiD) ~~assisting Purchaser and the Financing Sources~~ require CTWS or any of its Subsidiaries to take any action that will conflict with or violate CTWS’s or any of its Subsidiaries’ charter documents, any Laws or result in the ~~preparation~~ contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any material Contract to which CTWS or any of ~~(A)~~ its Subsidiaries is a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentationsparty, (~~iii~~E) ~~furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation~~ result in any employee, officer, director or Representative of ~~documentation~~ CTWS or any of its Subsidiaries incurring personal liability with respect to any matters relating to the ~~pledging~~ Financing; (F) require CTWS or any of ~~collateral, if applicable. In addition, Seller will use~~ its ~~reasonable best efforts~~ Subsidiaries to provide any information the disclosure of which is prohibited or restricted under applicable Law or any Contract or is legally privileged; (G) require the delivery of opinions of external or internal counsel; (H) require CTWS, its Subsidiaries or their Representatives to ~~Purchaser~~ furnish any financial statements, audit reports or financial information other than to the extent such statements, reports or information are readily available to, or readily derivable from the books and ~~the Financing Sources the Required Information in a manner that~~records of, ~~taken as a whole~~CTWS, ~~does not contain~~ any ~~untrue statement~~ of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller its Subsidiaries or any of their respective ~~Affiliates~~ Representatives or (I) require CTWS or any of its Subsidiaries or their respective Representatives to execute or approve any definitive financing documents, including any credit or other ~~Representatives~~ agreements or certificates in connection with the Financing (other than customary authorization letters in connection with the Financing, if any, and solely to the extent set forth in Section 6.12(d)(viii) above); (ii) neither CTWS nor any of its Subsidiaries shall be required to pay or incur any commitment or other similar ~~fee, provide any security, execute any document, make any representations, provide any indemnification~~ fee or incur or assume any ~~other expense~~ liability or ~~Liability~~ obligation in connection with the Financing prior to the Effective Time (other than as are expressly reimbursable or payable by SJW and Merger Sub and except for the ~~cooperation contemplated by this Section 6.13(d~~obligation to deliver the customary authorization letters referenced above), ; (iiiii) none of ~~▇▇▇▇▇▇, Seller~~ the board of directors (or other similar governing body) of CTWS or any of ~~their respective Affiliates or other Representatives~~ its Subsidiaries shall be required to ~~provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in~~ adopt resolutions approving the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) Financing; and (iv) none of ~~▇▇▇▇▇▇~~CTWS, ~~Seller~~ any of its Subsidiaries or any of its or their respective ~~Affiliates, or any Persons who are directors of any of the foregoing,~~ Representatives shall be required to ~~pass resolutions~~ make any representation to SJW, any of its Affiliates, any lender, agent or ~~consents~~ lead arranger to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, ~~Alternative Financing~~ or any other ~~funds or financing by Purchaser~~ Person with respect to any action under this Section 6.12, as to the solvency of CTWS, any of its Subsidiaries, or any of its ~~Affiliates~~ or their respective Representatives, or to deliver or require to be ~~a condition to~~ delivered any solvency or similar certificate. (f) SJW shall (i) promptly upon request by CTWS, reimburse CTWS for all of ~~Purchaser’s or Purchaser Parent’s obligations under~~ its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by CTWS and its Representatives in connection with any cooperation contemplated by this ~~Agreement.~~Section 6.12 and (ii) indemnify CTWS, its Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, p

Appears in 2 contracts

Sources: Agreement and Plan of Merger (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group)

Financing. (a) ~~Purchaser~~ Buyer shall, and ~~Purchaser Parent each~~ shall cause its applicable Affiliates party to the Financing Commitments to, use ~~its~~ reasonable best efforts to take, or cause to be taken, all ~~actions and to~~ appropriate action, do, or cause to be done, all things necessary, proper or advisable to obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ as promptly as reasonably practicable on the terms (including, with respect to the Debt Financing, the “market flex” provisions) and subject only to the conditions ~~described~~ contained in the ~~Commitment Letter (including~~ Financing Commitments and in Sections 5.01 and 5.02 herein, and completion of the ~~flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Marketing Period, including ~~using its reasonable best efforts~~ to (i~~) maintain in effect the Commitment Letter, (ii~~) negotiate and enter into definitive agreements with respect to the Financing on the terms ~~and conditions~~ (~~including~~ including, with respect to the ~~flex~~ Debt Financing, the “market flex” provisions) and subject only to the conditions contained in the ~~Commitment Letter~~Financing Commitments or on other terms acceptable to Buyer, ~~subject~~ so long as such definitive agreements (A) do not contain any additional or modified conditions or other contingencies to ~~any amendments or modifications thereto permitted by Section 6.13(b~~the funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement and (B) do not reduce the aggregate amount of the Debt Financing set forth in the Financing Commitments as of the date of this Agreement, unless (1) in case of this clause (B), replaced with an amount of new debt or equity financing on conditions no less favorable to Seller than the terms set forth in the Debt Financing Commitment or the Equity Financing Commitment, as applicable, as of the date hereof and (~~iii~~2) ~~satisfy~~ in case of the foregoing clauses (A) and (B), such agreements are not reasonably likely to impair or delay the funding of the Financing or the Closing, (ii) satisfy, and cause its Affiliates to satisfy, on a timely basis (after giving effect to the entire period of the Marketing Period) all conditions applicable to ~~Purchaser~~ Buyer or its Affiliates contained in the ~~Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the~~ Financing Commitments and ~~due and payable by Purchaser or its Affiliates,~~ (iviii) ~~upon the satisfaction or waiver of such conditions,~~ consummate the Financing ~~on or prior to~~ at the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative FinancingClosing. (b) ~~Notwithstanding~~ For the avoidance of doubt and notwithstanding anything to the contrary in this ~~Agreement~~Section 6.05, ~~Purchaser~~ Buyer acknowledges and ~~Purchaser Parent~~ agrees that its obligation to consummate the Transactions on the terms and subject to the conditions set forth herein are not conditioned upon the availability or consummation of the Financing, the availability of any replacement commitments or receipt of the proceeds therefrom. (c) Buyer shall ~~not~~not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Financing Commitments or the definitive agreements relating to the Financing without Seller’s prior written consent, which consent shall not be unreasonably withheld; provided that Buyer may amend, supplement or modify the Financing Commitments or the definitive agreements relating to the Financing without Seller’s prior written consent ~~of ▇▇▇▇▇▇~~if such amendment, supplement or modification would not: (i) ~~permit~~ reduce the aggregate amount of the Financing set forth in the Financing Commitments as of the date of this Agreement, (ii) contain any ~~termination~~additional or modified conditions or other contingencies to the funding of the applicable Financing than those contained in the applicable Financing Commitments as of the date of this Agreement or (iii) modify in a manner adverse to Buyer or its Affiliates party thereto, ~~amendment or modification to, or any waiver of any provision or remedy under~~as applicable, the ~~Commitment Letter~~ conditions to the funding, enforceability, availability or ~~Fee Letters if such termination~~termination of the Financing, ~~amendment~~in any case under the foregoing clauses (i), ~~modification~~(ii) and (iii), ~~waiver~~ that would make the impairment or ~~remedy~~ delay of the funding of the Financing or the Closing reasonably likely. It is agreed and understood that, notwithstanding anything herein to the contrary, the Buyer may (A) ~~adds new conditions~~ amend the Financing Commitments to add lenders, lead arrangers, bookrunners, agents, syndication agents, documentation agents, investors, or similar entities who had not executed the ~~Financing,~~ Financing Commitments as of the date of this Agreement in accordance with the provisions hereof and of the Financing Commitments and (B) ~~modifies~~ amend or otherwise modify the Debt Financing Commitments to implement any ~~existing conditions to the Financing in a manner that affects the consummation of all or~~ “market flex” provisions applicable thereto. (d) If any portion of the Financing becomes unavailable on the terms and conditions (including, with respect to ~~below a level that would impair Purchaser’s ability to consummate~~ the ~~Transactions, (B) reduces the committed amount of the~~ Debt Financing, (Cthe “market flex” provisions) ~~adversely affects~~ contained in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing ~~contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing~~Commitments, ~~Seller~~ Buyer shall promptly notify Seller, and ~~▇▇▇▇▇▇~~ Buyer shall, ~~at Purchaser’s cost~~ and ~~expense~~shall cause its Affiliates to, use reasonable best efforts toto obtain, as promptly as practicable following the occurrence of such event, replacement commitments on terms that will enable Buyer to consummate the Transactions; provided that such replacement commitments shall not be subject to any additional or modified conditions or other contingencies to the funding of the Financing that would, individually or in the aggregate, be reasonably likely to impair or delay the funding of the Financing or the Closing (after giving effect to the entire period of the Marketing Period). Buyer shall deliver to Seller complete and correct copies of all amendments, supplements, other modifications or agreements (including Redacted Fee Letters) pursuant to which any amended, supplemented, modified or replacement commitments shall provide Buyer (directly or indirectly through its Affiliates party thereto) with any portion of the Financing. Upon any amendment, supplement, modification or replacement of the Financing Commitments in accordance with this Section 6.05, the terms “Debt Financing”, “Debt Financing Commitment”, “Redacted Fee Letter”, “Equity Financing”, and “Equity Financing Commitment” shall be in reference to such amended, supplemented, modified or replaced commitment. (e) Seller shall, and shall cause its Subsidiaries, and shall use its commercially reasonable efforts to cause ~~its Representatives to~~their respective legal counsel and other advisors and the Transferred Company’s accountants, to use commercially reasonable efforts to provide ~~to Purchaser such~~ cooperation ~~as is reasonably requested by Purchaser~~ in connection with the arrangement of the Financing (as may be reasonably requested by Buyer; provided that (i) such requested cooperation ~~does~~ shall not unreasonably interfere with the ongoing operations of ~~Seller, ▇▇▇▇▇▇~~ Seller and ~~their respective~~ its Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) Seller shall not be required to provide any audited or unaudited “carve-out” financial statements of the Business other than the Financial Statements and (iii) such cooperation shall not cause any representation, warranty, covenant or other term in this Agreement to be breached or cause any closing condition set forth in Article V to fail to be satisfied), including the following actions: (i) participating in a reasonable number of meetings with the Financing Sources (and to cause the members of senior management and representatives of the Business to participate in such meetings), rating agency presentations, road shows, and due diligence sessions, and cooperating reasonably with the marketing efforts of Buyer and the Financing Sources, in each case upon reasonable notice and at mutually agreed upon dates and times; (ii) assisting ~~Purchaser~~ Buyer and the Financing Sources in the preparation of rating agency presentations, offering documents, bank information memoranda (including a version thereof that does not contain material non-public information), lender and investor presentations, and other similar materials for any debt or equity financing, including to cause the execution and delivery of reasonable and customary representation letters, authorization letters and solvency certificates and to furnish records, data or other information necessary to support material statistical information or claims relating to the Business appearing in the aforementioned materials; in each case in this clause (ii): (A) subject to customary confidentiality provisions and disclaimers, (B) required or customary in connection with the Financing, (C) as requested by Buyer and (D) limited to information to be contained therein with respect to the Transferred Company and its Subsidiaries; (iii) furnishing to Buyer and the Financing Sources as promptly as reasonably practicable (A) (1) the Financial Statements, (2) the audited combined balance sheet and statements of income and comprehensive income, combined statements of equity and combined statements of cash flows for the Audited Entities for each subsequent fiscal year that is ended at least ninety (90) calendar days prior to the Closing Date, (3) the unaudited combined balance sheet and related combined statements of income and comprehensive income and combined statements of cash flows of the Audited Entities for each subsequent fiscal quarter (other than the fourth fiscal quarter) after December 31, 2018 that is ended at least forty-five (45) calendar days prior to the Closing Date (including the comparable prior year period) and (4) such other historical financial information and operating data relating to the Audited Entities (excluding YES Network Holding Company, LLC) reasonably necessary to permit Buyer to complete a ~~customary offering document,~~ private placement of non-convertible debt securities (including information required by Regulation S-X and Regulation S-K under the Securities Act that is also of a type and form customarily included in an offering memorandum ~~and/or bank~~ with respect to a private placement pursuant to Rule 144A under the Securities Act for financings similar to the Debt Financing and subject to exceptions customary for such financings such as the omission of (x) Compensation Disclosure and Analysis required by Regulation S-K Item 402(b) and (y) any information ~~memorandum~~ required by Items 10 through 14 of Form 10-K (other than Item 13 as it relates to Item 404 of Regulation S-K)), including drafts of customary “comfort letters” for a private placement transaction from the Audited Entities’ independent accountants, reasonably requested by Buyer and ~~similar marketing documents for~~ the Financing or Sources in connection with the ~~Alternative Financing~~arrangement, ~~as applicable~~marketing, syndication of the Financing and (B) ~~materials~~ such other financial or pertinent information regarding the Audited Entities as may be reasonably available to the Seller, and which is (1) reasonably requested by Buyer in connection with the preparation of a confidential information memorandum and offering documents customary for ~~rating agency presentations~~the type of financing contemplated by the Financing Commitments as in effect on the date hereof and (2) reasonably necessary in order to consummate the Financing, including in connection with Buyer’s preparation of customary pro forma financial information (~~iii~~excluding any historical financial statements, which are addressed in clause (A) ~~furnishing Purchaser and~~ above) (all of the foregoing, the “Required Information”), all of which is Compliant; (iv) using reasonable best efforts to take such actions as are reasonably requested by Buyer or the Financing Sources to facilitate the ~~Required Information; and~~ satisfaction of the conditions set forth in the Financing Commitments (~~iv) facilitating Purchaser’s preparation of documentation~~ including, with respect to the ~~pledging~~ Debt Financing, reasonably facilitating the taking of ~~collateral~~collateral contemplated by the Debt Financing Commitments) and the taking of corporate actions by the Transferred Company and its Subsidiaries; provided that any such taking of collateral or corporate actions shall be contingent upon and effective as of the Closing; (v) to the extent required in connection with the Financing, ~~if applicable. In addition, Seller will use its reasonable best efforts~~ requesting the Audited Entities’ independent accountants to provide reasonable assistance to ~~Purchaser~~ Buyer consistent with customary practices (including to provide consent to Buyer to use audit reports relating to the Financial Statements, on customary terms in connection with the Financing); (vi) executing and delivering, at and effective as of the ~~Financing Sources~~ Closing, such definitive financing documents and other customary closing documents, as may be required in connection with the ~~Required Information~~ Financing; and (vii) at least four (4) business days prior to the end of the Marketing Period, providing all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001, as amended, that has been requested in ~~a manner~~ writing at least eight (8) Business Days prior to the end of the Marketing Period; provided that, ~~taken as a whole, does not contain any untrue statement~~ notwithstanding the requirements of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoingSection 6.05(e), (i) ~~none~~ Seller and its Affiliates shall not be required to enter into or approve any certificate, document or agreement which will be effective prior to the Closing Date (other than customary representation letters, authorization letters and confirmations (including with respect to the absence of ~~▇▇▇▇▇▇~~the presence of material non-public information), subject to customary exclusions) or that would be inaccurate in light of the facts and circumstances at the time approved, authorized, executed or delivered, (ii) Seller ~~or any of their respective~~ and its Affiliates ~~or other Representatives~~ shall not be required to pay any commitment or other ~~similar fee, provide any security, execute any document, make any representations, provide any indemnification~~ fee or incur any other ~~expense~~ liability (including any guarantee, indemnity, or ~~Liability~~ pledge) in connection with the Financing (in the case of the Transferred Company, prior to the Closing Date), (iii) nothing herein will require Seller and its Affiliates or any of their respective representatives to provide any information or take any action, the disclosure or taking of which would reasonably be expected to violate applicable Law, any fiduciary duty, any Contract, or obligation of confidentiality owing to a third party, or jeopardize the protection of the attorney-client privilege (it being agreed that the Seller shall give notice to Buyer of the fact that it is withholding such information or documents on any such basis, shall withhold only that portion of such information that is reasonably necessary to be withheld to not violate applicable Law, duty, Contract, or obligation and to preserve attorney-client privilege, and thereafter Seller shall use its reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to violate such Law, duty, Contract, or obligation or waive attorney-client privilege) and (iv) Seller and its Affiliates and their respective representatives shall not be required to deliver any legal opinion or negative assurance letter in connection with the Financing. (f) Seller shall give Buyer notice if it becomes aware that the Required Information taken as a whole is or becomes incorrect in any material respect. From the date of this Agreement until the Closing Date, Seller hereby consents for Buyer to use the logos owned by the Business and listed on Section 6.05(f) of the Disclosure Letter, provided that such logos shall be used solely on materials reasonably necessary for the Financing and in a manner that is customary for Financings of this type and solely in a manner that does not harm or disparage the Business, the Transferred Company or any of its Affiliates or their reputation or goodwill. All non-public information regarding the Transferred Company and its Affiliates provided to any of Buyer, the Financing Sources or their respective representatives pursuant to this Section 6.05 shall be kept confidential, except for disclosure to potential lenders and investors and their respective representatives that is reasonably required in connection with the Financing or ~~the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be~~ that is otherwise required to ~~provide any solvency opinion or legal opinion or other opinion of counsel~~be disclosed by the Buyer in connection with the Financing, ~~or any information that would~~subject to customary confidentiality protections to the extent applicable. (g) Buyer shall, ~~in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly,~~ promptly upon request by ~~▇▇▇▇▇▇ or~~ Seller, reimburse ~~▇▇▇▇▇▇,~~ Seller ~~and their respective Affiliates~~ for all out-of-pocket ~~fees,~~ costs ~~and expenses~~ incurred by Seller or any of ~~them (including reasonable attorneys’ fees and other fees and expenses as incurred)~~ its Subsidiaries in connection with ~~the~~ such cooperation ~~contemplated by~~ under this Section ~~6.13(d)~~ 6.05. Buyer and ~~shall~~ its Subsidiaries shall, on a joint and several basis, indemnify and hold harmless ~~▇▇▇▇▇▇,~~ Seller and ~~their respective Affiliates~~ its Subsidiaries from and against any ~~and all~~ costs, damages, losses, expenses, or other Liabilities suffered or incurred by ~~any of~~ them in connection with the arrangement of the Financing or and any information utilized in connection therewith. (h) Buyer shall keep Seller informed on a timely basis of the ~~cooperation contemplated by this Section 6.13(d)~~ status of the Financing and ~~(iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or~~ any ~~Persons who are directors of any~~ material developments relating to the Financing. Without limiting the generality of the foregoing, Buyer shall give Seller prompt notice of (i) any default or breach (or any event that, with or without notice, lapse of time or both, would reasonably be ~~required~~ expected to ~~pass resolutions~~ constitute a default or ~~consents~~ breach) by any party under the Financing Commitments or the definitive agreements relating to ~~approve or authorize~~ the ~~execution~~ Financing of which Buyer becomes aware, (ii) any termination of the Financing ~~or execute or deliver any certificate~~Commitments, ~~document, instrument or agreement that is effective prior to~~ (iii) the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.rece

Appears in 2 contracts

Sources: Equity Purchase Agreement (Sinclair Broadcast Group Inc), Equity Purchase Agreement (Walt Disney Co)

Financing. (a) ~~Purchaser~~ The Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, (i) Equity Financing Commitment (the “Equity Financing”), or (ii) the Debt Financing Commitments if, in the case of the Debt Financing Commitments, such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the financing contemplated by the Debt Financing Commitments (the “Debt Financing” and ~~Purchaser Parent each~~ together with the Equity Financing, the “Financing”) to an amount committed below the amount that is required, together with other financial resources of the Buyer, including amounts available under the Equity Financing Commitment, cash, cash equivalents and marketable securities of the Buyer on the Closing Date, to finance the Purchase Price on the terms set forth herein or (y) 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 (A) materially delay or prevent the Closing or (B) materially delay, prevent or otherwise make materially less likely to occur the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) and shall use ~~its~~ commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain ~~and to consummate~~ the Debt Financing ~~(or any Alternative Financing)~~ on the terms and ~~conditions~~ described in the Debt Financing Commitments (provided, however, that the Buyer may amend or replace the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed a Debt Financing Commitment ~~Letter (including~~ as of the ~~flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b~~date hereof), including using ~~its~~ commercially reasonable ~~best~~ efforts to (i) maintain in effect the ~~Commitment Letter~~Debt Financing Commitments, (ii) ~~negotiate and~~ satisfy on a timely basis all conditions applicable to the Buyer to obtaining the Debt Financing at the Closing set forth therein, (iii) enter into definitive agreements with respect ~~to the Financing~~ thereto on the terms and conditions (including the flex provisions) ~~contained in~~ contemplated by the ~~Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b),~~ Debt Financing Commitments (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition and provide copies thereof to the ~~Financing~~ Seller upon reasonable request) and ~~due and payable by Purchaser or its Affiliates,~~ (iv) ~~upon the satisfaction or waiver of such conditions,~~ consummate the Debt Financing on in accordance with the terms and conditions of the Debt Financing Commitments at or prior to the ~~Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby,~~ Closing. (vb) ~~obtain such third-party consents as may be reasonably required in connection with~~ In the ~~Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any~~ event ~~or circumstance that makes procurement of~~ any portion of the Debt Financing ~~reasonably unlikely to occur in~~ becomes unavailable on the ~~manner or from the sources~~ terms and conditions contemplated in the ~~Commitment Letter~~Debt Financing Commitments (including the flex provisions), ~~Purchaser~~ the Buyer shall promptly ~~(and in any event within two (2) Business Days)~~ notify ~~▇▇▇▇▇▇ and~~ the Seller and shall use ~~its~~ commercially reasonable ~~best~~ efforts to arrange ~~as promptly as practicable any such portion~~ to obtain alternative debt financing from alternative debt sources on terms and conditions ~~not materially~~ no less favorable to the Buyer (in the ~~aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any~~ reasonable judgment of the ~~effects prohibited pursuant~~ Buyer) and in an amount sufficient to ~~amendment by Section 6.13(b)~~ consummate the transactions contemplated hereby promptly following the occurrence of such event (~~such financing,~~ the “Alternative Financing”). ~~Purchaser~~ The Buyer shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties promptly deliver to the ~~Commitment Letter~~Seller true, ~~Alternative Financing or definitive financing~~ complete and correct copies of all agreements ~~related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of~~ pursuant to which any such alternative source shall have committed to provide the ~~status of Purchaser’s and its Affiliates’ efforts to arrange~~ Buyer with the ~~Financing or~~ Alternative Financing. For purposes of this Section 5.21, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted by this Section 5.21 to be amended, modified or replaced and references to “Debt Financing Commitments” shall include such documents as permitted by this Section 5.21 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement. (bc) Notwithstanding anything to the contrary contained in this Agreement, ~~Purchaser~~ nothing contained in this Section 5.21 or elsewhere in this Agreement shall require, and ~~Purchaser Parent~~ in no event shall ~~not~~the “commercially reasonable efforts” of the Buyer be deemed or construed to require, ~~without~~ the ~~prior written consent~~ Buyer to (i) bring any litigation or any other enforcement action against the Debt Financing Sources in order to enforce its rights under the Debt Financing Commitments or otherwise, (ii) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of ~~▇▇▇▇▇▇~~that contemplated by, the Equity Financing Commitment, (iii) seek or accept Debt Financing on terms less favorable in any material respect than the terms and conditions described in the Debt Financing Commitments (including the flex provisions) as determined in the reasonable judgment of the Buyer or (iv) pay any fees materially in excess of those contemplated by the Debt Financing Commitments (whether to secure a waiver of any conditions contained therein or otherwise). (d) In order to assist with the Debt Financing and at the Buyer’s expense, the Seller shall promptly provide its, and shall use reasonable best efforts to cause its Representatives to promptly provide their, reasonable best efforts assistance and cooperation as the Buyer and its Affiliates may reasonably request, including, but not limited to, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy participating in presentations and meetings (~~A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion~~ including customary one-on-one meetings between senior management and representatives of the Seller and the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate the Transactions~~Sources, ~~(B) reduces the committed amount~~ prospective lenders in respect of the ~~Financing, (C~~Debt Financing and rating agencies) ~~adversely affects in any material respect~~ and cooperating with the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation marketing efforts of the ~~Closing or~~ Buyer and the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Debt Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agenciesSources, (ii) assisting ~~Purchaser and the Financing Sources in~~ with the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, bank information memoranda, business projections, lender presentations and similar documents prepared in connection with the Debt Financing, including execution and delivery of customary representation letters in connection with bank information memoranda, (iii) furnishing ~~Purchaser~~ the Buyer and the Debt Financing Sources with financial, due diligence material and other pertinent information regarding the ~~Required Information; and~~ Seller as may be reasonably requested by the Buyer, (iv) ~~facilitating Purchaser’s preparation~~ executing and delivering, as of ~~documentation with respect~~ the Closing Date, any definitive financing documents, including any credit agreements, guarantees, pledge agreements, security agreements, mortgages, deeds of trust and other security documents or other certificates, documents and instruments relating to guarantees, the pledge of the collateral securing the Debt Financing and other matters ancillary to the ~~pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and~~ Debt Financing as may be reasonably requested by the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability Buyer in connection with the Debt Financing or and otherwise reasonably facilitating the pledging of, and granting and perfecting of Encumbrances in, the collateral securing the Debt Financing (including cooperation ~~contemplated~~ in connection with the payoff of the Indebtedness of the Seller required by this ~~Section 6.13(d~~Agreement and the termination of related Encumbrances), (v) furnishing, within the time period specified in the Debt Financing Commitments, all documentation and other information required by regulators and authorities under applicable “know your customer” and anti-money laundering and regulations, including the PATRIOT Act and (vi) taking all corporate or other actions, and providing such other assistance, necessary or reasonably requested by the Buyer to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Buyer on the Closing Date. The Seller hereby consents to the use of its logos in connection with the Debt Financing. For purposes of this Section 5.21(d), references to “Debt Financing” shall include any Alternative Financing. (e) The Buyer shall (i) if the Closing does not occur, indemnify and hold harmless the Seller from and against any and all liabilities and expenses suffered or incurred by the Seller in connection with the arrangement of the Debt Financing contemplated by the Debt Financing Commitments and the performance of its obligations under this Section 5.21 and any information utilized in connection therewith (other than information related to the Seller or its Subsidiaries provided by or on behalf of the Seller or its Subsidiaries in writing specifically for use in connection with the Debt Financing offering documents) and (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, promptly upon request ~~by ▇▇▇▇▇▇ or Seller,~~ of the Seller reimburse ~~▇▇▇▇▇▇,~~ the Seller ~~and their respective Affiliates~~ for all ~~out-of-pocket fees,~~ reasonable costs and expenses incurred by ~~any of them~~ the Seller (including ~~reasonable attorneys’ fees and other fees and expenses as incurred~~those of its Representatives) in connection with the cooperation ~~contemplated~~ required by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.045.21. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)

Financing. (a) ~~Purchaser and Purchaser~~ Parent ~~each~~ 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~~necessary to arrange, ~~proper or advisable to~~ consummate and obtain ~~and to consummate~~ the proceeds of the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions ~~described~~ not less favorable than those set forth in the ~~Commitment Letter~~ Loan Agreement Amendment on or prior to the Closing Date (including ~~the flex provisions related thereto), subject~~ but not limited to ~~any amendments or modifications thereto permitted by Section 6.13(b), including using its~~ reasonable best efforts to (i) maintain in effect the ~~Commitment Letter~~Loan Agreement Amendment and the Amended Loan Agreement (as defined in the Loan Agreement Amendment), (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis (or seek waiver of) all conditions ~~applicable~~ to ~~Purchaser~~ the Debt Financing that are within Parent’s or any of its ~~Affiliates contained~~ Affiliate’s control, and (iii) in the ~~Commitment Letter~~event that the conditions set forth in Article VIII have been satisfied or, ~~including~~ upon funding, would be satisfied or waived, draw an amount of the ~~payment~~ Debt Financing which, together with the cash on hand of Parent and the net proceeds of any ~~commitment~~offering of debt securities, ~~engagement or placement fees required as a condition~~ is at least equal to the Required Amount. Parent shall not, without the Company’s prior written consent, amend, modify, replace, terminate or agree to any waiver under the Loan Agreement Amendment or the Amended Loan Agreement (as defined in the Loan Agreement Amendment) if such amendment, modification, replacement, termination or waiver (i) reduces the aggregate amount of the Debt Financing to an amount that, together with Parent’s cash on hand and ~~due and payable by Purchaser~~ the net proceeds of any offering of debt securities, would be less than the Required Amount or ~~its Affiliates~~(ii) changes the conditions to obtaining the Debt Financing or adds new or additional conditions precedent to obtaining the Debt Financing, if such change would reasonably be expected to (A) materially delay or prevent the Closing, (ivB) ~~upon~~ make the funding of the Debt Financing (or satisfaction ~~or waiver~~ of ~~such conditions, consummate~~ the conditions to obtaining the Debt Financing on ~~or prior to~~ the Closing Date) materially less likely to occur or (C) materially adversely impact the ability of the Parent to enforce its rights against the other parties to the Loan Agreement Amendment, the Amended Loan Agreement (as defined in the Loan Agreement Amendment) or the definitive agreements with respect thereto; provided, however, that Parent may amend the Amended Loan Agreement to add lenders who had not executed the Loan Agreement Amendment or the Amended Loan Agreement (as defined in the Loan Agreement Amendment) as of the date hereof. Notwithstanding anything to the contrary contained in this Agreement, subject to the terms and conditions hereof, Parent shall have the right to substitute other debt or equity financing for all or any portion of the Debt Financing contemplated by the Loan Agreement Amendment from the same and/or alternative Financing Sources so long as such substitute financing is subject to funding conditions that, when taken as a whole, are not less favorable to Parent than the funding conditions set forth in the Loan Agreement Amendment and so long as such substitute financing would not adversely impact the ability of Parent to obtain the Required Amount on a timely basis. If any portion of the Debt Financing becomes unavailable on the terms and conditions or within the timing contemplated in the Loan Agreement Amendment, or the Loan Agreement Amendment or the Amended Credit Agreement (as defined in the Loan Agreement Amendment) shall be terminated or modified for any reason (but without waiving any responsibility or liability for breach by Parent of its obligations under this Agreement), then Parent shall use their reasonable best efforts to promptly and in consultation with the Company arrange to obtain alternative debt financing commitments (together with any replacements or substitutions of any of the foregoing from time to time in accordance with the terms hereof, any “Alternative Debt Financing”) from alternative lenders in an amount, when taken together with the cash on hand of Parent and the net proceeds of any offering of debt securities, not less than the Required Amount. The obligations of Parent hereunder shall apply equally to any such Alternative Debt Financing (including any new financing commitment). Upon the written request of the Company, Parent shall keep the Company reasonably informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange such Alternative Debt Financing and shall, upon request, provide true and correct copies of all documents related to any Alternative Debt Financing to the Company promptly upon their execution. The terms “Debt Financing” and “Loan Agreement Amendment” as used herein shall be deemed to include the Debt Financing or Loan Agreement Amendment, as the case may be, that is not so superseded at the time in question or that is amended, supplemented, modified, superseded or replaced in accordance with the terms hereof and any Alternative Debt Financing entered into in accordance herewith to the extent then in effect (b) Subject to Section 7.5, during the period commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Effective Time, the Company shall, and shall use reasonable best efforts to cause its Representatives to, prepare and furnish to Parent and the Financing Sources as promptly as reasonably practicable following request therefor (i) 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 ~~drawing on~~ the Debt Financing or customary for the offering and placement of debt securities, to the extent reasonably requested by Parent to assist in preparation of customary rating agency or lender presentations, bank information, offering or private placement memoranda, prospectuses and similar documents relating to such arrangement of loans or placement of debt securities and (ii) all consolidated financial statements, historical business and other financial data, and audit reports of the Company and its Subsidiaries, and any ~~interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably~~ supplements thereto required in connection with any Alternative Debt Financing and any other information required or reasonably necessary for the preparation of customary offering or private placement memoranda or prospectuses in connection with an offering of debt securities in connection with such Alternative Debt Financing, including the Company SEC Reports; provided, that the Company SEC Reports will be deemed provided when they are timely filed with the SEC (the information referred to in clause (ii) being referred to in this Agreement as the “Required Information”). (c) Subject to Section 7.1(d), during the period commencing on the date of this Agreement and ~~(vi) comply with its obligations under~~ continuing until the ~~Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion~~ earlier to occur of the ~~Financing reasonably unlikely~~ termination of this Agreement pursuant to ~~occur in~~ Article IX and the ~~manner or from~~ Effective Time, the ~~sources contemplated in the Commitment Letter~~Company shall, ~~Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller~~ and shall use its reasonable best efforts to ~~arrange~~ cause its Representatives to, upon reasonable notice, provide Parent with all customary and necessary cooperation, as ~~promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable~~ may be reasonably requested by Parent in connection with obtaining the ~~aggregate~~ Debt Financing, including, without limitation, by: (i) using reasonable best efforts to ~~Purchaser~~ make the Company’s senior management and its ~~Affiliates than the terms~~ Representatives available to participate in a reasonable and ~~conditions set forth in the Commitment Letter and that would not have any~~ customary number of ~~the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall~~ (A) ~~give ▇▇▇▇▇▇~~ meetings, due diligence sessions, drafting sessions, and ~~Seller prompt oral and written notice of (1)~~ meetings with the Financing Sources and/or prospective lenders in connection with any ~~breach or default by Purchaser or its Affiliates of the Commitment Letter,~~ Alternative Debt Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) ~~upon request~~presentations, ~~otherwise keep ▇▇▇▇▇▇~~ road shows and ~~Seller reasonably informed~~ sessions with rating agencies in connection with any Alternative Debt Financing; (ii) solely in connection with any Alternative Debt Financing, assisting in the preparation of those sections of any rating agency presentations, offering memoranda, private placement memoranda, road show presentations, bank information memoranda (including, to the extent necessary, (A) an additional bank information memorandum that does not include material non-public information of the ~~status~~ Company or its securities within the meaning of ~~Purchaser~~United States federal and state securities laws and (B) authorization letters), prospectuses and similar documents (including, if applicable, the delivery of one or more customary representation letters), including any supplements to the foregoing, that relate to the Company and its business, operations and prospects, in each case that are required in connection with such Alternative Debt Financing; (iii) using reasonable best efforts to obtain the consent of, and customary comfort letters (including customary “negative assurance” comfort and change period comfort) from, the Company’s past and present auditors (including by providing customary management letters and requesting legal letters to obtain such consent) if necessary or desirable for Parent’s use of the Company’s financial statements in connection with any Alternative Debt Financing; (iv) (A) assisting in the preparation of and, in connection with the Closing, executing one or more credit or other agreements, as well as any pledge and security documents, and other definitive financing documents, collateral filings or other certificates or documents as may be reasonably requested by Parent in connection with the Debt Financing and otherwise reasonably facilitating the granting and perfection of security interests in and the pledging of collateral (including the delivery of original share certificates, together with share powers executed in blank, with respect to the Company) and (B) reasonably facilitating the taking of all corporate actions by the Company with respect to entering such definitive financing documents and otherwise necessary to permit consummation of the Debt Financing in connection with the Transactions; provided that, the effectiveness of any of the foregoing ((A) and (B)) shall be subject to the occurrence of the Effective Time; (v) in connection with any Alternative Debt Financing, providing customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders (including customary 10b-5 and material non-public information representations); (vi) cooperating with customary and reasonable due diligence requests in connection with the Debt Financing; (vii) solely in connection with any Alternative Debt Financing, to the extent appropriate, using reasonable best efforts to ensure any syndication and marketing efforts benefit from the Company’s existing lending and investment banking relationships; (viii) providing at least four (4) 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 Source for the Debt Financing that is required under applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230, to the extent reasonably requested by Parent from the Company at least seven (7) Business Days prior to the expected Closing Date; (ix) upon the request of Parent, publicly disclosing or permitting Parent to publicly disclose, in connection with any bona fide marketing activities related to any Alternative Debt Financing, any non-public business or financial information related to the Company and/or any of its Subsidiaries that Parent reasonably determines, upon the advice of counsel, to be material to an investment decision in connection with such Alternative Debt Financing and is legally required to be disclosed in any offering documents related to any Alternative Debt Financing; provided that no such disclosure shall occur without the written consent of the Company, which consent cannot be unreasonably withheld; (x) [reserved]; (xi) providing Parent prompt notice of any Required Information ceasing to be Compliant; and (xii) using reasonable efforts to permit the prospective lenders involved in the Debt Financing to evaluate the Company’s and its ~~Affiliates~~Subsidiaries’ ~~efforts~~ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to ~~arrange~~ the ~~Financing or Alternative Financing~~extent customary and reasonable and otherwise reasonably facilitating the grant of a security interest in collateral and providing related lender protections. (bd) Notwithstanding anything to the contrary contained in this ~~Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇~~Agreement (including this Section 7.1), (i) ~~permit~~ nothing herein shall require any ~~termination, amendment or modification to, or any waiver of any provision or remedy under,~~ such cooperation to the ~~Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy~~ extent it would (A) ~~adds new conditions~~ require the Company or any of its Representatives, as applicable, to ~~the Financing~~waive or amend any terms of this Agreement, (B) ~~modifies any existing conditions to~~ unreasonably disrupt the ~~Financing in a manner that affects~~ conduct of the ~~consummation~~ ongoing business or operations of ~~all~~ the Company or any ~~portion~~ of its Subsidiaries or Affiliates, as determined by the ~~Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing~~Company in good faith, (C) ~~adversely affects in~~ require the Company to agree to pay any ~~material respect~~ fees, reimburse any expenses or otherwise incur any actual or potential liability or give any indemnities that are not contingent upon the ~~ability of Purchaser to enforce its rights against other parties to the Commitment Letter~~ Effective Time or ~~the definitive agreements in respect thereof~~for which it is not promptly reimbursed or simultaneously indemnified, or (D) ~~could otherwise~~ require the Company to take any action that would reasonably be expected to ~~prevent~~conflict with, ~~impede~~ or ~~delay~~ result in any ~~material respect~~ violation or breach of, or default (with or without notice or lapse of time, or both) under the ~~consummation~~ certificate of incorporation or bylaws of the Company, any applicable Laws, or any Contract, (E) require the Company or its Representatives to prepare any projections or other “forward looking” or similar statements, (F) result in any officer or director of the Company or any of its Representatives incurring actual or potential personal liability with respect to any matters relating to the Debt Financing; (G) require any financial (or other) information that (1) is not produced in the ordinary course of business and (2) cannot be produced or provided without unreasonable cost or expense, (H) provide access to or disclose information that the Company determines in good faith (after consultation with counsel) would jeopardize any attorney client privilege of, or conflict with any confidentiality requirements applicable to, the Company or any of its Subsidiaries, (I) cause any representation or warranty in this Agreement to be breached, cause any condition to the Closing set forth in Annex I to fail to be satisfied or ~~the Transactions~~otherwise cause any breach of this Agreement, or (iiJ) ~~undertake~~ require the Company to deliver or cause the delivery of any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser legal opinions in connection with the ~~Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇~~ Debt Financing; and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) ~~assisting Purchaser and the Financing Sources in the preparation of~~ no action, liability or obligation (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain including any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required obligation to pay any commitment or other ~~similar fee~~fees or reimburse any expenses) of the Company or any of its Representatives under any certificate, ~~provide any security~~agreement, ~~execute any document~~arrangement, ~~make any representations, provide any indemnification~~ document or ~~incur any~~ instrument relating to the Debt Financing (other ~~expense~~ than a customary authorization letter) shall be effective until (or ~~Liability~~ that is not contingent upon) the Effective Time. Parent and its Subsidiaries and the Financing Sources may reasonably use logos of the Company in connection with the ~~Financing~~ Debt Financing; provided, that such logos are used solely in conformance with the Company’s trademark usage guidelines and in a manner that is not intended to or reasonably likely to harm or disparage the ~~cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller~~ Company or any of ~~their respective Affiliates~~ its Subsidiaries or ~~other Representatives shall be required to provide any solvency opinion~~ the reputation or ~~legal opinion or other opinion~~ goodwill of ~~counsel,~~ the Company or any ~~information that would~~of its Subsidiaries. (e) Upon the request of the Company and Parent will keep the Company reasonably informed on a reasonably current basis of the status of Parent’s efforts to obtain the Debt Financing. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice of the occurrence of any material breach of or default under the Loan Agreement Amendment or the Amended Loan Agreement (as defined in the ~~reasonable opinion~~ Loan Agreement Amendment) by any party thereto of ~~▇▇▇▇▇▇ or Seller~~which Parent becomes aware. (f) In the event that this Agreement is terminated in accordance with Section 9.1 (other than a termination by the Company pursuant to Section 9.1(c)), ~~result in a violation of Law or loss of attorney-client privilege~~Parent shall, ~~(iii) Purchaser shall promptly,~~ promptly upon request by ~~▇▇▇▇▇▇ or Seller~~the Company, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ the Company for all reasonable and documented out-of-pocket ~~fees, costs and~~ expenses incurred by ~~any of them (including reasonable attorneys’ fees and other fees and expenses as incurred)~~ the Company or its Representatives in connection with the ~~cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and~~ performance of their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this ~~Agreement.~~Section 7.1 (to the extent not prev

Appears in 2 contracts

Sources: Merger Agreement (scPharmaceuticals Inc.), Merger Agreement (Mannkind Corp)

Financing. (a) ~~Purchaser~~ Newco and ~~Purchaser Parent each~~ Merger Sub shall ~~use its reasonable best efforts to take,~~ take (or cause to be taken) all actions, ~~all actions~~ and ~~to do,~~ do (or cause to be done) all things, ~~all things~~ necessary, proper or advisable to obtain ~~and~~ the financing contemplated by the Commitment Letter, subject to ~~consummate the Financing (or any Alternative Financing) on~~ the terms and conditions ~~described in~~ of this Agreement and the Commitment ~~Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Letter, including ~~using its reasonable best efforts to~~ (i) ~~maintain~~ maintaining in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy satisfying on a timely basis all conditions applicable to ~~Purchaser~~ Newco and Merger Sub set forth in the Commitment Letter that are within their control (other than, for the avoidance of doubt, Newco or ~~its Affiliates contained~~ Merger Sub’s conditions to Closing in Article VII hereof), (iii) so long as all conditions to Closing set forth in Sections 7.1 and 7.2 are satisfied (or waived by Newco), consummating the financing contemplated by the Commitment Letter at the Effective Time (and in any event prior to the Termination Date), and (iv) fully enforcing the Investor’s obligations (and the rights of Newco and Merger Sub) under the Commitment Letter, including (at the ~~payment~~ request of ~~any commitment, engagement~~ the Company) by filing one or ~~placement fees required as a condition~~ more lawsuits (or assigning such right to the ~~Financing~~ Company) against the Investor to fully enforce the Investor’s obligations (and ~~due~~ the rights of Newco and ~~payable~~ Merger Sub) thereunder. (b) Neither Newco nor Merger Sub shall amend, alter, or waive, or agree to amend, alter or waive (in any case whether by ~~Purchaser~~ action or ~~its Affiliates~~inaction), ~~(iv) upon the satisfaction or waiver~~ any term of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment ~~Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion~~ Letter without the prior written consent of the ~~Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser~~ Company. Newco shall promptly (and in any event within ~~two (2)~~ one Business ~~Days~~Day) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice Company of (1i) ~~any breach~~ the expiration or ~~default by Purchaser~~ termination (or ~~its Affiliates of the Commitment Letter~~attempted or purported termination, ~~Alternative Financing~~ whether or ~~definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates~~not valid) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) ~~undertake~~ any ~~merger~~refusal by the Investor to provide, ~~acquisition~~any stated intent by the Investor to refuse to provide, ~~joint venture, disposition, lease, Contract~~ or ~~debt~~ any expression of concern or ~~equity financing that could reasonably be expected to materially impair, delay or prevent consummation~~ reservation by the Investor regarding the enforceability of the ~~Financing~~ Commitment Letter subject to the terms thereof or its ability to provide the full financing contemplated by the Commitment ~~Letter or any Alternative Financing contemplated by any new debt commitment letter~~Letter. (c) Prior to the Closing, ~~Seller~~ the Company shall use its reasonable efforts to assist Newco in the arrangement of any third party debt financing requested by Newco for the purpose of financing the merger, fees and ~~▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to~~expenses incurred in connection therewith, and the other transactions contemplated hereby (the “Debt Financing”) (it being understood that the receipt of such Debt Financing is not a condition to ~~cause its Representatives to~~Closing), provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the followingincluding: (i) ~~assisting~~ participating in ~~preparation for~~ meetings, presentations and ~~participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies,~~ due diligence sessions; (ii) assisting ~~Purchaser and the Financing Sources in~~ with the preparation of ~~(A) a customary offering document~~materials for presentations, ~~private placement memorandum and/or bank information memorandum~~ memoranda and similar ~~marketing~~ documents ~~for the Financing or the Alternative~~ required in connection with Newco’s Debt Financing~~, as applicable,~~ ; and ~~(B) materials for rating agency presentations,~~ (iii) ~~furnishing Purchaser~~ executing and delivering any definitive financing documents and certificates as may be reasonably requested by Newco, provided that such documents will not take effect until the ~~Financing Sources the Required Information~~Effective Time; ~~and (iv) facilitating Purchaser’s preparation of documentation with respect~~ provided, however, that nothing herein shall require such cooperation to the ~~pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts~~ extent it would require the Company to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required agree to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Sellerfees, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and~~ any expenses ~~incurred by~~ or give any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective indemnities prior to the ~~Closing~~ Effective Time for which it is not reimbursed or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04indemnified. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Sumtotal Systems Inc), Merger Agreement (Vista Equity Partners Fund III LP)

Financing. (a) ~~Purchaser and Purchaser Parent each~~ Sequential shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the ~~Commitment Letter~~ Financing Commitments (including the ~~flex~~ exercise of “market flex” provisions in the related ~~thereto~~fee letter) as promptly as practicable following the date hereof (taking into account the expected timing of the Closing). Sequential shall comply with its obligations, and enforce its rights, under the Financing Commitments in a timely and diligent manner. In the event that all conditions to the Financing Commitments set forth therein have been, or upon funding will be, satisfied, Sequential shall use its reasonable best efforts to cause the lenders party thereto and the other Persons providing such Financing to comply with their obligations under the Financing Commitments and the definitive financing agreements entered into in connection with the Financing and to fund the Financing required to consummate the transactions contemplated by this Agreement and to pay related fees, costs and expenses on or prior to the Closing Date. Sequential will keep MSLO reasonably informed of the status of its efforts to arrange the Financing and to satisfy the conditions thereof, including (A) promptly notifying MSLO of (1) any material breach or default by any party to the Financing Commitments 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 Sequential or any of its Representatives of any written notice or other written communication from any lender committing or providing the Financing or other Person with respect to (x) any actual, threatened or alleged breach, default, termination or repudiation by any party to the Financing Commitments or any definitive financing agreement entered into in connection with the Financing or any provision thereof (including any proposal by any lender or other Person to withdraw or terminate or make any material change in the terms of the Financing Commitment that would reasonably be expected to affect the timely availability of, or the amount of, the Financing) or (y) any material dispute or disagreement between or among any parties to any Financing Commitment or any definitive financing agreement entered into in connection with the Financing, if such dispute or disagreement would reasonably be expected to affect the timely availability of, or amount of, the Financing and (B) upon MSLO’s reasonable request, advising and updating MSLO, in a reasonable level of detail, with respect to status of the Financing. Sequential may replace or amend all or any portion of the Financing Commitments; provided, that such replacement or amendment would not (i) reduce the aggregate cash amount of proceeds of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing (except as set forth in any “market flex” provisions existing on the date hereof in the related fee letter)), (ii) impose new or additional conditions, or otherwise expand any conditions, to the receipt of the Financing from those set forth in the Financing Commitments on the date hereof, (iii) reasonably be expected to prevent, or materially delay or impair, the availability of the full amount of the Financing or make the funding of the Financing or the satisfaction of the conditions to obtaining the Financing less likely to occur, (iv) adversely affect the ability of Sequential to enforce its rights against any lender or any other Person providing or committing to provide the Financing or (v) adversely impact the ability of Sequential to cause TopCo to timely consummate the MSLO Merger and the other transactions contemplated hereby. For purposes of this Agreement, references to “Financing” shall include the financing contemplated by the Financing Commitments as replaced, amended or modified as permitted hereby, including, if applicable, pursuant to an alternative financing that is in compliance herewith, and references to “Financing Commitments” shall include such documents as replaced, amended or modified as permitted hereby, including, if applicable, pursuant to an alternative financing in compliance herewith. Without limiting the generality of the foregoing and subject to ~~any~~ replacements or amendments ~~or modifications thereto~~ permitted ~~by Section 6.13(b)~~hereby, ~~including using~~ Sequential shall use its reasonable best efforts to (i) maintain in effect the ~~Commitment Letter~~Financing Commitments until the transactions contemplated by this Agreement are consummated, (ii) satisfy on a timely basis (taking into account the expected timing of the Closing) all conditions and covenants applicable to Sequential in the Financing Commitments and any definitive agreements entered into in connection therewith at or prior to Closing and otherwise comply with its obligations thereunder, (iii) negotiate and enter into definitive agreements with respect ~~to the Financing~~ thereto on the terms and conditions consistent with those contemplated by the Financing Commitments and (~~including~~ iv) consummate the ~~flex provisions~~Financing at or prior to the Closing. If, notwithstanding the use of reasonable best efforts by Sequential to satisfy its obligations under this Section 5.7, any portion of the Financing or the Financing Commitments (or any definitive financing agreement relating thereto) ~~contained~~ expire or are terminated or otherwise become unavailable prior to the Closing, in whole or in part, for whatever reason, Sequential shall (i) promptly notify MSLO of such expiration, termination or unavailability and the reason therefor and (ii) use its reasonable best efforts to promptly arrange and obtain alternative financing from alternative sources, in an amount sufficient to consummate the transactions contemplated by this Agreement and to pay related fees, costs and expenses as promptly as practicable following the occurrence of such event and which do not include any conditions to the consummation of such alternative financing that are more onerous than the conditions set forth in the ~~Commitment Letter~~Financing Commitments. True, complete and correct copies of each commitment letter and other agreement relating to the alternative financing will be promptly provided to MSLO. Sequential acknowledges and agrees that the obtaining of the Financing is not a condition to the Closing. For the avoidance of doubt, if the Financing has not been obtained, Sequential will continue to be obligated, subject to the fulfillment or waiver of the conditions set forth in Sections 7.1 and 7.3, to complete the Mergers and consummate the other transactions contemplated hereby. (b) Prior to the Closing, MSLO shall use reasonable best efforts to provide to Sequential, at Sequential’s sole expense, all cooperation reasonably requested by Sequential in connection with the Financing, including by using reasonable best efforts in (i) furnishing Sequential and its lenders any ~~amendments~~ information and financial statements reasonably requested by such Persons as is customarily required in connection with the execution of debt financings similar to the Financing (provided, that MSLO will have no obligation to prepare pro forma financial information or ~~modifications thereto permitted~~ post-closing financial information), (ii) participating, but only together with the executive officers of Sequential and other members of senior management and representatives of Sequential, and at a time and place acceptable to the executive officers of MSLO, in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and the executive officers of MSLO and other members of senior management and representatives of MSLO), presentations, road shows, due diligence sessions and sessions with rating agencies in connection with the Financing, as reasonably requested by ~~Section 6.13(b)~~Sequential, (iii) ~~satisfy on a timely basis all conditions applicable to Purchaser or~~ assisting Sequential and its ~~Affiliates contained~~ lenders in the ~~Commitment Letter~~preparation of customary bank information memoranda, ~~including the payment of any commitment, engagement or placement fees required as a condition~~ rating agency presentations and lender presentations relating to the ~~Financing and due and payable by Purchaser or its Affiliates~~Financing, (iv) ~~upon~~ cooperating with the ~~satisfaction~~ marketing efforts of Sequential and its lenders for all or ~~waiver~~ any portion of ~~such conditions~~the Financing, ~~consummate~~ (v) providing information with respect to the assets of MSLO and its Subsidiaries that will serve as collateral for the Financing as is reasonably requested by Sequential and, subject to Section 6.2, providing reasonable access to Sequential and its lenders, during normal working hours and upon reasonable advance notice, to allow them to conduct audit examinations and appraisals with respect to such collateral, (vi) seeking to cause its auditors to provide assistance to Sequential consistent with their customary practice (including to provide and consent to the use of their audit reports relating to the consolidated financial statements of MSLO and its Subsidiaries), in each case on or customary terms and consistent with their customary practice in connection with financings similar to the Financing, (vii) so long as such documents and other information are reasonably requested by Sequential in writing at least ten Business Days prior to the Closing Date, providing all documentation and other information required by regulatory authorities with respect to MSLO and its Subsidiaries under applicable “know your customer” and anti-money laundering rules and regulations, including ~~by drawing on any interim or bridge financing facilities contemplated thereby~~the USA PATRIOT Act of 2001, ~~(v) obtain such third-party consents~~ as ~~may be reasonably required in connection with the Financing~~amended, and (viviii) ~~comply with its obligations under~~ seeking 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 Financing Commitment ~~Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion~~ to be paid off, discharged and terminated at Closing; provided, however, that, irrespective of the ~~Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter~~above, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice~~ such requested cooperation shall not unreasonably interfere with the business or the ongoing operations of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s MSLO and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the FinancingSubsidiaries, (B) ~~modifies any existing conditions~~ nothing in this Section 5.7(b) shall require cooperation to the ~~Financing~~ extent that it would (x) cause any condition to the Closing set forth in ~~a manner that affects the consummation~~ Sections 7.1 and 7.3 to not be satisfied or otherwise cause any breach of ~~all~~ this Agreement or (y) reasonably be expected to conflict with or violate MSLO’s or any ~~portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing~~its Subsidiaries’ organizational documents or any applicable Law, (C) ~~adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties~~ prior to the ~~Commitment Letter~~ Closing, none of the directors or managers of MSLO or any of its Subsidiaries, acting in such capacity, shall be required to execute, deliver or enter into or perform any agreement, certificate, document or instrument with respect to the ~~definitive agreements in respect thereof~~Financing or adopt any resolutions approving the agreements, or documents and instruments pursuant to which the Financing is obtained, and (D) ~~could otherwise reasonably~~ none of MSLO’s or its Subsidiaries’ officers or employees shall be ~~expected~~ required to ~~prevent~~execute, ~~impede~~ deliver or ~~delay in~~ enter into, or perform any ~~material~~ agreement, document or instrument with respect to the ~~consummation of~~ Financing that is not contingent upon the Closing or that would be effective prior to the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letterEffective Time. (c) ~~Prior to the Closing~~Notwithstanding Section 5.7(b) above, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ~~▇▇▇▇▇▇, Seller~~ MSLO or any of ~~their respective Affiliates or other Representatives~~ its Subsidiaries shall be required to bear any cost or expense or to pay any commitment or other similar ~~fee, provide any security, execute any document,~~ fee or make any ~~representations, provide any indemnification~~ other payment in connection or incur or assume any other ~~expense~~ liability or ~~Liability in connection~~ obligation with the Financing or prior to the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, Effective Time except in the ~~reasonable opinion~~ case of ~~▇▇▇▇▇▇ or Seller~~expenses that are reimbursed as provided in Section 8.2(b). Sequential shall, ~~result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly,~~ promptly upon ~~request by ▇▇▇▇▇▇ or Seller~~request, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ MSLO for all reasonable and documented out-of-pocket ~~fees,~~ costs and expenses ~~incurred by any of them~~ (including reasonable attorneys’ ~~fees and other fees and expenses as incurred~~fees) incurred by MSLO or any of its Subsidiaries in connection with ~~the cooperation contemplated by this~~ fulfilling its obligations pursuant to Section ~~6.13(d) and~~ 5.7(b). Sequential shall indemnify and hold harmless ~~▇▇▇▇▇▇, Seller~~ MSLO and its Subsidiaries (and their respective ~~Affiliates~~ Representatives) from and against any and all ~~Liabilities~~ liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred ~~by any of them~~ in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to MSLO or ~~execute or deliver any certificate~~its Subsidiaries provided by MSLO in writing specifically for use in the Financing offering documents). MSLO hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing; provided, ~~document, instrument or agreement~~ that such logos are used solely in a manner that is ~~effective prior~~ not intended to ~~the Closing~~ nor reasonably likely to harm or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser disparage MSLO or any of its ~~Affiliates be a condition to~~ Subsidiaries or the reputation or goodwill of MSLO or any of ~~Purchaser’s~~ its Subsidiaries and its or ~~Purchaser Parent’s obligations under this Agreement~~their marks.

Appears in 2 contracts

Sources: Merger Agreement (Martha Stewart Living Omnimedia Inc), Merger Agreement (Sequential Brands Group, Inc.)

Financing. (a) ~~Purchaser~~ The Buyer and ~~Purchaser Parent each shall~~ the Acquisition Sub will use ~~its reasonable~~ their 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 ~~and to consummate~~ the ~~Financing (or any Alternative~~ proceeds of the Financing~~) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~, including using ~~its reasonable~~ their best efforts to (iA) consummate the Financing contemplated by the Commitment Letters at such time as all conditions set forth in Section 7.1 are satisfied (except for those requiring delivery of a certificate evidencing certain matters), (B) maintain ~~in effect~~ the effectiveness of the Commitment ~~Letter~~Letters (and the term sheets and fee letters related thereto) in accordance with their respective terms, other than such amendments or modifications as would not reasonably be expected to impair the Buyer and the Acquisition Sub’s ability to consummate the transactions contemplated hereby, (iiC) ~~negotiate and~~ enter into definitive agreements with respect to the Financing on contemplated by the Commitment Letters consistent with the terms and conditions contained therein, and (~~including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii~~D) satisfy on a timely basis all conditions ~~applicable~~ precedent to ~~Purchaser or its Affiliates contained~~ funding in such definitive agreements and in the Commitment Letters (and the term sheets and fee letters related thereto); provided that, notwithstanding the foregoing, the Buyer may terminate, or allow the termination of, the Debt Commitment Letter, ~~including~~ if prior thereto or substantially concurrently therewith the ~~payment~~ Buyer enters into a replacement commitment letter that contains no conditions precedent to funding thereunder beyond (or materially and adversely modified from) those in the Debt Commitment Letter, and provides for financing in an amount that, when taken together with the amount of ~~any commitment~~equity provided under the Equity Commitment Letter, ~~engagement or placement fees required as a condition to~~ is not less than that provided for in the Financing ~~and due and payable by Purchaser or its Affiliates~~as of the date of this Agreement. For the avoidance of doubt, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion occurrence of the Financing ~~reasonably unlikely to occur in~~ and/or the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any Buyer’s receipt of the ~~effects prohibited pursuant~~ proceeds thereof shall not be a condition precedent to ~~amendment by Section 6.13(b) (such financing,~~ the ~~“Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates~~ obligations of the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of~~ Buyer and the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of~~ Acquisition Sub to effect the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative FinancingMerger. (b) ~~Notwithstanding anything~~ The Company will use commercially reasonable efforts to assist and cooperate with the ~~contrary~~ Buyer and the Acquisition Sub in ~~this Agreement, Purchaser and Purchaser Parent shall not, without~~ connection with their efforts to obtain the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount proceeds of the Financing, ~~(C) adversely affects in any material respect the ability of Purchaser~~ including but not limited to ~~enforce its rights against other parties~~ using commercially reasonable efforts to provide information relating to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is Company reasonably requested by ~~Purchaser~~ the financial institution or institutions providing the Financing, using commercially reasonable efforts to make representatives of and advisors to the Company reasonably available in connection with syndication efforts regarding the Financing, and using commercially reasonable efforts to execute and deliver, and cause the Company’s Subsidiaries and its and their officers, to execute and deliver, customary certificates and other documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Debt Financing as may be reasonably requested by the Buyer in connection with the ~~Financing (provided~~ Debt Financing; provided, however, that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light no obligation of the ~~circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller~~ Company or any of ~~their respective Affiliates~~ the Company’s Subsidiaries under any such certificate, document or ~~other Representatives shall~~ instrument will be effective until the Effective Time and none of the Company or any of its Subsidiaries will be required to pay any commitment or other similar ~~fee, provide any security, execute any document, make any representations, provide any indemnification~~ fee or incur any other ~~expense or Liability~~ liability in connection with the Debt Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04Effective Time. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Witness Systems Inc), Merger Agreement (Verint Systems Inc)

Financing. (a) ~~Purchaser~~ Parent has delivered to the Company a true and ~~Purchaser Parent each shall use its reasonable best efforts~~ complete copy of the executed debt commitment letters (including all exhibits, schedules, annexes and amendments thereto and the related fee letters (redacted for provisions related to ~~take~~fees, ~~or cause~~ pricing, “flex” terms (other than any “flex” terms expressly permitted thereby to be ~~taken~~disclosed to the Company) and any other economic terms)), dated as of the date of this Agreement, by and among certain of the Financing Sources and Parent providing for debt financing as described by such commitment letters (such commitment letters, including all ~~actions~~ such exhibits, schedules, annexes and amendments thereto and the related fee letters (redacted for provisions related to dofees, ~~or cause~~ pricing, “flex” terms (other than any “flex” term expressly permitted thereby to be ~~done~~disclosed to the Company) and any other economic terms), ~~all things necessary~~collectively, ~~proper or advisable~~ the “Commitment Letters”), pursuant to ~~obtain and to consummate the Financing (or any Alternative Financing) on~~ which, upon the terms and subject to the conditions ~~described in~~ set forth or referred to therein, certain of the Financing Sources have agreed to lend the amounts set forth therein (the “Financing”), for the purpose of, inter alia, funding the Merger Consideration and the fees and expenses related thereto. (b) As of the date of this Agreement, each Commitment Letter is in full force and effect and is a valid and binding obligation of Parent and Merger Sub and, to Parent’s knowledge, the other parties thereto, enforceable in accordance with its terms (~~including~~ subject to the ~~flex provisions related thereto~~Remedies Exceptions), and is not subject to any ~~amendments~~ conditions precedent related to the funding of the net proceeds of the Financing that are not set forth or ~~modifications thereto~~ otherwise contemplated in the copies of such Commitment Letter provided to the Company (it being understood that the related fee letters may be redacted by Parent by removing fees, pricing, “flex” terms (other than any “flex” term expressly permitted ~~by Section 6.13(b), including using its reasonable best efforts~~ to be disclosed to the Company) and any other economic terms therein. (ic) ~~maintain in effect~~ None of the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments Letters has been amended or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing modified on or prior to the ~~Closing Date~~date of this Agreement and the respective commitments contained therein have not been terminated, ~~including by drawing~~ reduced, withdrawn or rescinded on or prior to the date of this Agreement, and to Parent’s knowledge, none of any ~~interim~~ such actions is contemplated as of the date hereof. (d) As of the date of this Agreement, none of the Financing Sources has notified Parent or ~~bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with~~ Merger Sub of its intention to terminate any Commitment Letter or not to provide the Financing. (e) As of the date of this Agreement, none of Parent, Merger Sub or, to Parent’s knowledge, any other party to any Commitment Letter is in material default or material breach under the terms and ~~(vi) comply~~ conditions of such Commitment Letter and no event has occurred which, with ~~its obligations~~ or without notice, lapse of time or both, would constitute a material default or material breach by Parent, Merger Sub or, to Parent’s knowledge, any other party to such Commitment Letter under the terms and conditions of the Commitment Letter. ~~If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion~~ As of the date of this Agreement, Parent has no reason to believe that it or any other party thereto will be unable to satisfy any of the conditions to the Financing ~~reasonably unlikely~~ to ~~occur~~ be satisfied pursuant to each Commitment Letter on the Closing Date, provided that Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations or warranties set forth in Article III or non-compliance by the ~~manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (~~Company and ~~in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use~~ its ~~reasonable best efforts to arrange as promptly as practicable~~ affiliates with their respective obligations hereunder on any such ~~portion from alternative sources on terms and~~ condition to the Financing. (f) As of the date of this Agreement, there are no side letters, understandings or other agreements relating to the Financing to which Parent or any of its affiliates is a party that imposes conditions ~~not materially less favorable in~~ to the ~~aggregate to Purchaser and its Affiliates~~ funding of the Financing, other than ~~the terms and conditions~~ those set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative FinancingLetters. (bg) ~~Notwithstanding anything~~ Parent or an affiliate thereof on its behalf has fully paid any and all commitment or other fees required by the Commitment Letters to be paid on or prior to the ~~contrary in~~ date of this Agreement. (h) Parent and Merger Sub will have at and, ~~Purchaser and Purchaser Parent shall not~~where applicable, ~~without~~ after the ~~prior written consent of ▇▇▇▇▇▇,~~ Closing funds sufficient to (i) ~~permit~~ pay the Merger Consideration, (ii) pay any ~~termination~~and all fees and expenses required to be paid by Parent, ~~amendment or modification to, or any waiver of any provision or remedy under,~~ Merger Sub and the ~~Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to~~ Surviving Company in connection with the Merger and the Financing, (Biii) ~~modifies~~ pay for any ~~existing conditions to the Financing in a manner that affects the consummation~~ refinancing of ~~all or~~ any ~~portion~~ outstanding indebtedness of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to Company contemplated by this Agreement or the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; Letters and (iv) ~~facilitating Purchaser’s preparation~~ satisfy all of ~~documentation with respect to~~ the ~~pledging~~ other payment obligations of ~~collateral~~Parent, ~~if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser~~ Merger Sub and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are madeSurviving Company contemplated hereunder. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Plains Exploration & Production Co), Merger Agreement (Freeport McMoran Copper & Gold Inc)

Financing. ~~(a) Purchaser~~ Upon the terms and ~~Purchaser~~ subject to the conditions of this Agreement, Parent ~~each~~ 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~~ reasonably necessary to arrange and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment Letter pursuant to the terms thereof (~~including the flex~~ including, as necessary, any “market flex” provisions related thereto). In furtherance and not in limitation of the foregoing: (a) Parent shall not permit any amendment, ~~subject~~ supplement, replacement or modification to be made to, or any ~~amendments~~ waiver of any provision under, the Commitment Letter without the consent of the Company (such consent not to be unreasonably withheld, conditioned or ~~modifications thereto permitted~~ delayed) if such amendment, supplement, replacement, modification or waiver (i) reduces the aggregate amount of the Financing (including by increasing the amount of fees to be paid) or original issue discount, unless (A) the Financing is increased by a corresponding amount or (B) Parent or Merger Sub have a corresponding amount of available cash on hand such that the representation set forth in Section ~~6.13(b~~4.07(a) will still be true and correct or (ii) imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing, or otherwise expands, amends or modifies any other provision of the Commitment Letter, in a manner that would reasonably be expected to (A) delay or prevent or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) at the Acceptance Time or on the Closing Date or (B) adversely impact the ability of Parent to enforce its rights against other parties to the Commitment Letter or the definitive agreements with respect thereto, in each case, relating to the funding thereunder (provided, that Parent may (1) amend the Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities and (2) implement or exercise the “flex” provisions contained in one or more fee letters related to the Financing). Parent shall promptly deliver to the Company true, ~~including using~~ correct and complete copies of any such amendment, modification or replacement. (b) Parent shall use its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into ~~definitive agreements~~ the Definitive Financing Agreement with respect to the ~~Financing~~ Commitment Letter on the terms and conditions ~~(including the flex provisions)~~ contained in the Commitment ~~Letter~~Letter (including, ~~subject to~~ as necessary, any ~~amendments or modifications thereto permitted by Section 6.13(b~~“market flex” provisions related thereto), (iii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions ~~applicable~~ to ~~Purchaser~~ receipt of the amount of the Financing necessary to pay the aggregate amount of the aggregate Offer Price at the Acceptance Time and the aggregate Per Share Merger Consideration at the Closing that are within its control (but excluding any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information as required under Section 5.13 or the Company’s breach of any of its ~~Affiliates contained~~ other obligations under Section 5.13) and, upon satisfaction of the conditions set forth in the Commitment Letter, ~~including~~ to consummate the ~~payment of any commitment, engagement~~ Financing at or ~~placement fees required as a condition~~ prior to the ~~Financing and due and payable by Purchaser or its Affiliates~~Closing, (iv) ~~upon~~ enforce its rights under the ~~satisfaction or waiver of such conditions~~Commitment Letter, ~~consummate~~ including to cause the Financing Sources to fund at the Acceptance Time and on ~~or prior to~~ the Closing ~~Date, including by drawing on any interim or bridge financing facilities contemplated thereby,~~ Date the Financing and (v) ~~obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi)~~ to comply with its obligations under the Commitment Letter. ~~If Purchaser or Purchaser~~ In each case promptly upon the Company’s reasonable request, Parent shall keep the Company informed in reasonable detail of the status of its efforts to arrange the Financing and promptly provide to the Company at its request copies of all substantially final drafts and executed definitive agreements for the Financing. (c) Parent agrees to notify the Company reasonably promptly, and in any event within three (3) Business Days, if at any time prior to the Effective Time (i) the Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the ~~definitive agreements~~ Definitive Financing Agreement, (iii) a counterparty indicates in ~~respect thereof~~writing that it will not provide, or ~~(D) could otherwise reasonably be expected~~ it refuses to ~~prevent~~provide, ~~impede~~ all or ~~delay in~~ any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation portion of the Financing contemplated by the Commitment Letter on the terms set forth in the Commitment Letter, (iv) Parent receives any written notice or other written communication from any Person with respect to any actual breach, default, termination or repudiation by any party to any Commitment Letter or the Definitive Financing Agreement or (v) Parent determines in good faith that it will not be able to obtain all or any ~~Alternative~~ portion of the Financing necessary to pay the aggregate Offer Price and the aggregate Per Share Merger Consideration; provided, that in no event will Parent be under any obligation to disclose any information shared among Parent and its professional advisors in connection with matters contemplated by the foregoing clauses (i) through (iv) that is subject to attorney-client or similar legal privilege. Without limiting Parent’s other obligations under this Section 5.14, if the commitments with respect to all or any ~~new debt commitment letter.~~ portion of the Financing expire or are terminated or all or any portion of the Financing otherwise becomes unavailable, then Parent shall (ci) ~~Prior to~~ promptly notify the ~~Closing~~Company of such event and the reasons therefor, ~~Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense,~~ (ii) use reasonable best efforts ~~to, and~~ to ~~cause its Representatives to, provide~~ obtain alternative financing from the same or alternative financing sources in an amount sufficient to ~~Purchaser such cooperation as is reasonably requested by Purchaser~~ pay all amounts required to paid in connection with the Offer, the Merger and the other transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event (the “Alternative Financing”), and (iii) obtain, and when obtained, provide the Company with a true, correct and complete copy of each alternative financing commitment in respect of such Alternative Financing (~~provided that such requested cooperation does not unreasonably interfere~~ each, a “New Commitment Letter”), together with ~~the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ all related fee letters (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources solely in the ~~preparation~~ case of the fee letters, with only (A) ~~a customary offering document~~the fee amounts, ~~private placement memorandum and/or bank information memorandum~~ yield or interest rate caps, and ~~similar marketing documents for the Financing or the Alternative Financing, as applicable,~~ original issue discount amounts and (B) ~~materials for rating agency presentations~~“flex,” and other economic terms, in each case under this clause (B) that are confidential and do not adversely affect the enforceability, availability or conditionality of or the aggregate amount of net proceeds available under such financing, contained therein redacted). In the event any New Commitment Letter is obtained, (~~iii~~1) ~~furnishing Purchaser~~ any reference in this Agreement to the “Financing” shall include the debt financing contemplated by the Commitment Letter as modified pursuant to clause (2) below, (2) any reference in this Agreement to the “Commitment Letter” shall be deemed to include the Commitment Letter which is not superseded by a New Commitment Letter at the time in question and each New Commitment Letter to the ~~Financing Sources the Required Information;~~ extent then in effect, and (iv3) ~~facilitating Purchaser’s preparation of documentation with respect~~ any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does Commitment Letter that is not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred superseded by any ~~of them (including reasonable attorneys’ fees~~ New Commitment Letter at the time in question and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior each New Debt Commitment Letter to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04extent then in effect. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Telecommunication Systems Inc /Fa/), Merger Agreement (Comtech Telecommunications Corp /De/)

Financing. ~~(a) Purchaser and Purchaser~~ Parent each 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 obtain and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect has delivered to the ~~Financing on the terms~~ Company true, correct and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion complete fully executed copies of the ~~Financing reasonably unlikely to occur in~~ commitment letter, dated as of the ~~manner or from the sources contemplated in the Commitment Letter~~date hereof, ~~Purchaser shall promptly (~~among Parent, Bank of America, N.A. and ~~in any event within two (2) Business Days) notify~~ ▇▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financingLynch, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of SellerPierce, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇& ▇▇▇▇▇ ~~or Seller~~Incorporated, ~~result~~ including all exhibits, schedules, annexes and amendments to such agreement in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses effect as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the ~~foregoing~~date of this Agreement, ~~shall~~ and excerpts of those portions of each fee letter and engagement letter associated therewith that contain any conditions to funding or “flex” provisions (excluding provisions related solely to fees) regarding the terms and conditions of the financing to be ~~required~~ provided thereby (collectively, the “Commitment Letter”), pursuant to ~~pass resolutions~~ which and subject to the terms and conditions thereof each of the parties thereto (other than Parent), have severally agreed and committed to provide the debt financing set forth therein (the “Financing”). The Commitment Letter has not been amended, restated or ~~consents~~ otherwise modified or waived prior to ~~approve~~ the date of this Agreement and the respective commitments contained in the Commitment Letter have not been withdrawn, modified or ~~authorize~~ rescinded in any respect prior to the ~~execution~~ date of this Agreement. As of the date of this Agreement, the Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of Parent and, to the Knowledge of Parent, the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no conditions precedent, “flex” provisions or other substantive provisions regarding the terms and conditions of the Financing ~~or execute or deliver any certificate, document, instrument or agreement that is effective prior~~ other than as expressly set forth in the Commitment Letter. Subject to the ~~Closing or agree to any change or modification~~ terms and conditions of ~~any existing certificate~~the Commitment Letter, ~~document, instrument or agreement that is effective prior to~~ the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability net proceeds of the Financing, ~~Alternative Financing or any~~ together with other ~~funds or financing by Purchaser or any~~ financial resources of ~~its Affiliates~~ Parent including cash on hand and the proceeds of loans under existing revolving credit facilities of Parent on the Closing Date, will, in the aggregate, be ~~a condition to any~~ sufficient for the satisfaction of ~~Purchaser’s or Purchaser~~ all of Parent’s obligations under this Agreement, including the payment of any amounts required to be paid pursuant to Article II, and the payment of any debt required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger (including all indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger) (all such debt, the “Required Refinancing Indebtedness”) and of all fees and expenses reasonably expected to be incurred in connection herewith. As of the date of this Agreement, (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), in each case, on the part of Parent or, to the Knowledge of Parent, any other party to the Commitment Letter, under the Commitment Letter, and (ii) Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing or any other funds necessary for the satisfaction of all of Parent’s obligations under this Agreement and the payment of the Required Refinancing Indebtedness and of all fees and expenses reasonably expected to be incurred in connection herewith will not be available to Parent on the Closing Date. Parent has fully paid all fees required to be paid prior to the date of this Agreement pursuant to the Commitment Letter.

Appears in 2 contracts

Sources: Merger Agreement (Silgan Holdings Inc), Merger Agreement (Graham Packaging Co Inc.)

Financing. (a) ~~Purchaser~~ IP, Spinco and ~~Purchaser Parent each~~ UWWH shall ~~use its~~ use, and shall cause their respective Subsidiaries and Representatives and advisors to 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 obtain~~ arrange and to consummate the Spinco Financing ~~(or any Alternative Financing)~~ as soon as reasonably practicable after the date of this Agreement on ~~the~~ terms and conditions ~~described~~ no less favorable in the aggregate than the terms set forth in the Spinco Commitment Letter (including any market “flex” provisions) as in effect on the ~~flex provisions related thereto)~~date hereof, ~~subject to any amendments~~ as it may be amended or ~~modifications thereto permitted by~~ replaced in accordance with the terms of this Section ~~6.13(b)~~8.19, including using ~~its~~ their respective reasonable best ~~efforts~~ efforts, as applicable, to (i) maintain in effect the Spinco Commitment Letter, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to IP, Spinco or UWWH, as the case may be, in the Spinco Commitment Letter and such definitive documents to be entered into pursuant to the Spinco Commitment Letter, (iii) negotiate and enter into definitive agreements with respect ~~to the Financing on~~ thereto consistent with the terms and conditions ~~(including the flex provisions)~~ contained in the Spinco Commitment ~~Letter~~Letter provided on the date of this Agreement (including any market “flex” provisions, ~~subject~~ if any) or on other terms no less favorable in the aggregate to ~~any amendments~~ IP, Spinco or ~~modifications thereto permitted by Section 6.13(b)~~UWWH (in each case, ~~(iii) satisfy on a timely basis all conditions applicable~~ upon written consent of IP and UWWH to ~~Purchaser or its Affiliates~~ enter into such definitive agreements in the event the terms thereof are inconsistent with the terms contained in the Spinco Commitment ~~Letter~~Letter delivered on the date hereof , ~~including the payment of any commitment, engagement~~ as it may be amended or ~~placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates~~replaced in accordance with this Section 8.19), (iv) ~~upon~~ in the ~~satisfaction or waiver~~ case of ~~such conditions~~Spinco, ~~consummate~~ comply with its obligations and, in the ~~Financing on or prior~~ case of IP and UWWH, cooperate with Spinco to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) enable Spinco to comply with its obligations under the Spinco Commitment Letter (including, without limitation, in the case of IP, taking such actions as necessary to cause the payment to IP of the Special Payment and in the case of UWWH, the repayment in full of the Unisource Credit Facility in connection with the consummation of the Merger) and (v) cooperate in all aspects necessary or reasonably requested by IP or UWWH in connection with the arrangement and consummation of the Spinco Financing as required by the terms of the Spinco Commitment Letter, including, without limitation, (A) participation in a reasonable number of meetings, presentations, and meetings with, and presentations to, prospective lenders and rating agencies; (B) assisting with the marketing and due diligence efforts with respect to the Spinco Financing, including the preparation of materials for rating agency presentations, bank information memoranda, lender presentations and other customary marketing materials, including execution and delivery of customary authorization letters (by each of the Persons required by the Lenders to deliver such letters), in each case consistent with the terms required by the Spinco Commitment Letter in connection therewith; (C) furnishing financial and other information regarding UWWH, Spinco and their respective Subsidiaries, as required by the Spinco Commitment Letter (all such information in this clause (C), the “Required Information”); (D) using their reasonable best efforts to obtaining legal opinions, appraisals, surveys, title insurance and other documentation and items relating to the Spinco Financing as required by the Spinco Commitment Letter; (E) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, mortgages, documents and instruments relating to guarantees, or documents, in each case as and when required by the Spinco Commitment Letter (including a certificate of the Chief Financial Officer (or officer of equivalent duties) of Spinco or any Subsidiary with respect to solvency matters (which certificate shall be in the form attached to the Spinco Commitment Letter), all back-up and supporting information, as may be reasonably required by the person signing such certificate to support the conclusions set forth therein) and otherwise facilitating the pledging of collateral and providing of guarantees contemplated by the Spinco Commitment Letter (including cooperation in connection with the pay-off of existing Indebtedness and the release of related liens); (F) using their reasonable best efforts in taking all reasonable actions necessary to (I) permit the prospective persons involved in the Spinco Financing to evaluate UWWH, Spinco and their respective Subsidiaries, including Spinco’s and UWWH’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (II) establish bank and other accounts, blocked account agreements and lock box arrangements in connection with the foregoing as required by the terms of the Spinco Commitment Letter, provided that no such arrangement or agreement shall become effective prior to the Closing Date; (G) using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other parties to material leases, Encumbrances and Contracts to which any Subsidiary of Spinco or UWWH is a party, in each case to the extent required by the terms of the Spinco Commitment Letter; (H) furnishing all documentation and other information concerning such Person under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, and (I) using reasonable best efforts to cooperate with the lenders in their efforts to benefit from the existing lending relationships of IP, Spinco or UWWH; provided, however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of IP, Spinco or UWWH or any of their respective Subsidiaries; provided, further, that for the avoidance of doubt, nothing set forth in this Section 8.19 shall require IP, Spinco or UWWH or any of their respective Subsidiaries to enter into any documentation prior to the Closing Date (other than an authorization letter pursuant to clause (iv)(B) above) or deliver any financial statements except as expressly contemplated by the Spinco Commitment Letter provided on the date of this Agreement. IP, Spinco and UWWH will update any such Required Information in order to ensure that such Required Information does not contain 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, as and to the extent required by the terms of the Spinco Commitment Letter. ~~If Purchaser~~ Each of Spinco and UWWH hereby consents to the use of its and its Subsidiaries’ logos in connection with the Spinco Financing provided that such logos are used solely in a manner that is not intended to or ~~Purchaser Parent becomes aware~~ reasonably likely to harm or disparage it or its reputation or goodwill or any of ~~any~~ its intellectual property rights. (b) In the event ~~or circumstance~~ that ~~makes procurement of~~ any portion of the Spinco Financing ~~reasonably unlikely to occur in~~ becomes unavailable on the ~~manner or from the sources~~ terms and conditions contemplated in the Spinco Commitment ~~Letter~~Letter provided on the date of this Agreement (including any market “flex” provisions), ~~Purchaser shall promptly~~ IP and Spinco (unless the unavailability of the Spinco Financing is a result of the failure of UWWH to comply with Section 8.19(a)) and ~~in any event within two~~ UWWH (2unless the unavailability of the Spinco Financing is a result of the failure of IP or Spinco to comply with Section 8.19(a)) ~~Business Days) notify ▇▇▇▇▇▇ and Seller and~~ shall use ~~its~~ their reasonable best efforts to ~~arrange~~ obtain alternative financing from the same or alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement and the other Transaction Agreements as promptly as practicable following the occurrence of such event. The terms of any such ~~portion from~~ alternative ~~sources on terms and conditions not materially~~ financing shall be no less favorable in the aggregate to ~~Purchaser~~ Spinco and its ~~Affiliates~~ Subsidiaries and UWWH than the terms ~~and conditions set forth in~~ of the Spinco Commitment Letter in effect on the date hereof unless otherwise agreed by IP and UWWH (it being understood and agreed that ~~would not have any~~ whether such alternative financing is more or less restrictive with respect to payments under the Tax Receivables Agreement than the terms of the ~~effects prohibited pursuant~~ Spinco Commitment Letter in effect on the date hereof shall not be taken into account for purposes of determining whether the terms of such alternative financing are less favorable to ~~amendment by Section 6.13(b) (such financing~~Spinco, ~~the “Alternative Financing”~~its Subsidiaries and UWWH). ~~Purchaser~~ IP, Spinco and UWWH shall ~~(A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice~~ use their respective reasonable best efforts to cause the terms of ~~(1)~~ any ~~breach or default by Purchaser or its Affiliates~~ such alternative financing to be no more restrictive with respect to payments under the Tax Receivable Agreement than the terms of the Spinco Commitment ~~Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of~~ Letter in effect on the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financingdate hereof. (bc) ~~Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent~~ Spinco shall not, without the prior written consent of ~~▇▇▇▇▇▇~~IP and UWWH, (i) ~~permit~~ terminate any ~~termination~~Spinco Commitment Letter, unless such Spinco Commitment Letter is replaced by a substitute commitment letter that would be permitted under the following clause (c)(ii) if it were an amendment to the Spinco Commitment Letter, (ii) consent to any amendment or modification ~~to, or any waiver of any provision or remedy under,~~ to the Spinco Commitment Letter that would change or ~~Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions~~ add to the conditions precedent, delay or prevent the funding under the Spinco Financing, ~~(B) modifies any existing conditions~~ be more restrictive with respect to payments under the ~~Financing in a manner that affects the consummation of all~~ Tax Receivable Agreement or ~~any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C)~~ otherwise adversely ~~affects~~ affect in any material respect those terms set forth in the ~~ability~~ Spinco Commitment Letter provided on the date of ~~Purchaser~~ this Agreement or result in terms less favorable in the aggregate to ~~enforce its rights against other parties~~ IP, Spinco or UWWH or (iii) enter into any definitive documentation with respect to the Spinco Financing in the event the terms thereof are inconsistent with the terms contained in the Spinco Commitment Letter delivered on the date hereof, as it may be amended or replaced in accordance with Section 8.19. In the ~~definitive agreements~~ event that Spinco enters into a substitute commitment letter pursuant to this Section 8.19(b), references in ~~respect thereof, or (D) could otherwise reasonably~~ this Agreement to the Spinco Commitment Letter shall be ~~expected~~ deemed to ~~prevent, impede or delay~~ refer to such substitute commitment letter and references in ~~any material respect~~ this Agreement to the ~~consummation of~~ Spinco Financing shall be deemed to refer to the ~~Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or~~ debt ~~or equity~~ financing ~~that could reasonably be expected to materially impair, delay or prevent consummation of the Financing~~ contemplated by ~~the Commitment Letter or any Alternative Financing contemplated by any new debt~~ such substitute commitment letter. (cd) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance Each Party shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to ~~provide~~ cause its outside auditors to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading participate in the ~~light~~ preparation of ~~the circumstances under which such~~ any pro forma financial statements ~~are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller~~ necessary or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability desirable for use in connection with obtaining any Indebtedness incurred under the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04Spinco Financing. (e) ~~In no event~~ Each of IP, Spinco and UWWH shall use, and shall cause their respective Subsidiaries and Representatives and advisors to use, their reasonable best efforts to cooperate with each other, and assist in marketing the ~~receipt~~ Surviving Corporation and the Spinco Common Stock to potential investors, IP stockholders and the general investment and capital market communities, including using reasonable best efforts to (i) participate in investor meetings and (ii) take the types of action and provide the types of information described in Section 8.19(a) as are appropriate in connection with such marketing and/or as may be reasonably requested by UWWH, IP or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this AgreementSpinco.

Appears in 2 contracts

Sources: Merger Agreement (Xpedx Holding Co), Merger Agreement (Xpedx Holding Co)

Financing. (a) ~~Purchaser~~ Each of Parent and ~~Purchaser Parent each~~ Sub shall ~~use~~ use, and cause its Affiliates to use, its reasonable best efforts (unless, with respect to any action, another standard for performance is expressly provided for herein) 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 and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) ~~contained~~ set forth in the ~~Commitment Letter, subject to~~ Financing Agreements and any ~~amendments or modifications thereto permitted by Section 6.13(b~~related Fee Letter (taking into account the anticipated timing of the Marketing Period), ~~(iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter,~~ including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its using reasonable best efforts to ~~arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable~~ seek to enforce (including through litigation) its rights under the Debt Commitment Letter in the ~~aggregate to Purchaser and its Affiliates than~~ event of a material breach thereof by the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related theretosources thereunder, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall ~~not, without the prior written consent of ▇▇▇▇▇▇, (i)~~ not permit any ~~termination,~~ amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the ~~Commitment Letter~~ Financing Agreements or any related Fee ~~Letters~~ Letter, if such ~~termination,~~ amendment, ~~modification~~modification or waiver (i) reduces the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Financing Agreements, ~~waiver~~ (ii) imposes new or ~~remedy (A) adds new~~ additional conditions or otherwise expands, amends or modifies any of the conditions to the ~~Financing, (B) modifies any existing conditions to~~ receipt of the Financing in a manner adverse to Parent or the Company, (iii) decreases the aggregate Equity Financing as set forth in the Equity Financing Commitment delivered on the date hereof, (iv) amends or modifies any other terms in a manner that ~~affects~~ would reasonably be expected to (x) delay or prevent the ~~consummation of all~~ Offer Closing or ~~any portion~~ the Merger Closing Date or (y) make the timely funding of the Financing ~~to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount~~ or satisfaction of the ~~Financing,~~ conditions to obtaining the Financing less likely to occur or (Cv) adversely ~~affects in any material respect~~ impact the ability of ~~Purchaser~~ Parent or Sub to enforce its rights against the other parties to the Financing Agreements. For purposes of clarification, the foregoing shall not prohibit Parent from amending the Debt Commitment Letter or and any related Fee Letter to add additional lender(s) (and Affiliates of such additional lender(s)) as a party thereto. Any reference in this Agreement to (A) ‘‘Financing” shall include the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing ~~that could reasonably be expected to materially impair, delay or prevent consummation of the Financing~~ contemplated by the ~~Commitment Letter~~ Financing Agreements as amended or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser modified in ~~connection~~ compliance with ~~the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates~~this Section 7.08(a). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) ~~materials for rating agency presentations, (iii) furnishing Purchaser and the~~ “Financing ~~Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation~~ Agreements” or “Debt Commitment Letter” shall include such documents as amended or modified in compliance with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section ~~6.13(d~~7.08(a), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.[...]

Appears in 2 contracts

Sources: Merger Agreement, Merger Agreement

Financing. (a) ~~Purchaser and Purchaser~~ Parent ~~each~~ shall use its reasonable best efforts to take, or cause to be taken, all actions and shall use its reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain ~~and to consummate~~ the proceeds of the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Debt Commitment Letter (~~including~~ or Permitted Other Terms) no later than the ~~flex provisions related thereto), subject~~ date upon which the Merger is required to ~~any amendments or modifications thereto permitted by Section 6.13(b)~~be consummated pursuant to the terms hereof, including ~~using its reasonable best efforts to~~ by (i) ~~maintain~~ maintaining in full force and effect the Debt Commitment ~~Letter~~Letter and any Definitive Debt Financing Agreements (subject to replacement thereof in accordance with Section 7.04(b) or Section 7.04(c)), (ii) ~~negotiate~~ negotiating and ~~enter~~ entering into definitive agreements with respect to the Debt Financing on (the “Definitive Debt Financing Agreements”) consistent with the terms and conditions ~~(including the flex provisions)~~ contained in the Debt Commitment ~~Letter~~Letter (including, ~~subject~~ as necessary, the “flex” provisions contained therein or in any related fee letter) or on other terms acceptable to Parent that could not reasonably be expected to (A) reduce the aggregate amount of the Debt Financing (unless the aggregate amount of the Debt Financing, as so reduced, when taken together with any ~~amendments~~ equity commitment available to Parent, Holdco, Holdco II and Merger Subsidiary, would be sufficient to fund the Transaction Amounts as and when due), (B) impose new or ~~modifications thereto permitted~~ additional conditions precedent to the funding of the Debt Financing in a manner that would reasonably be expected to prevent, impede or materially delay the Closing, (C) prevent, impede or materially delay the consummation of the Merger or the other transactions contemplated by ~~Section 6.13(b~~this Agreement or (D) adversely affect the ability of Parent to enforce its rights against the other parties to such Definitive Debt Financing Agreements relative to the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date of this Agreement (such other terms that satisfy the foregoing requirements are referred to as “Permitted Other Terms”), (iii) ~~satisfy~~ satisfying on a timely basis all conditions ~~applicable~~ to ~~Purchaser or its Affiliates contained~~ the funding of the Debt Financing set forth in the Debt Commitment ~~Letter, including~~ Letter and the ~~payment of any commitment, engagement or placement fees required as a condition to~~ Definitive Debt Financing Agreements no later than at the ~~Financing and due and payable by Purchaser or its Affiliates~~Closing, (iv) ~~upon~~ consummating the ~~satisfaction or waiver of such conditions, consummate the~~ Debt Financing on at or prior to the Closing ~~Date, including by drawing on any interim or bridge financing facilities contemplated thereby,~~ and (v) ~~obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with~~ enforcing its ~~obligations~~ rights under the Debt Commitment Letter in the event of a breach by the Financing Entities of the Debt Commitment Letter. ~~If Purchaser~~ Without limiting the generality of the foregoing, in the event that all conditions contained in the Debt Commitment Letter or ~~Purchaser Parent becomes aware~~ any Definitive Debt Financing Agreement (other than the consummation of the Merger and the availability of any ~~event or circumstance that makes procurement of any portion of~~ equity financing) and the ~~Financing reasonably unlikely to occur~~ conditions set forth in ~~the manner or from the sources contemplated in the Commitment Letter~~Section 9.01 and Section 9.02 have been satisfied, ~~Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and~~ Parent shall use its reasonable best efforts to ~~arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable~~ cause the applicable Financing Entities to comply with their respective obligations thereunder, including to fund the Debt Financing. Parent shall keep the Company informed in ~~the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any~~ reasonable detail of the ~~effects prohibited pursuant~~ status of its efforts to ~~amendment by Section 6.13(b) (such financing,~~ arrange the ~~“Alternative Financing”). Purchaser~~ Debt Financing and any other financing upon the written request of the Company and shall ~~(A)~~ give ~~▇▇▇▇▇▇ and Seller~~ the Company prompt ~~oral and~~ written notice of (1) any breach by any party to the Debt Commitment Letter or ~~default by Purchaser or its Affiliates~~ Definitive Debt Financing Agreements of ~~the Commitment Letter, Alternative Financing or definitive financing agreements related thereto~~any material provision which Parent has become aware, (2) ~~any known breach~~ the expiration or ~~default by any party~~ termination in writing (~~other than Purchaser~~ or ~~its Affiliates~~attempted or purported termination in writing, whether or not valid) of the Debt Commitment Letter~~, Alternative Financing or definitive financing agreements related thereto~~, (3) any ~~purported termination~~ written or electronic (including email) notice or communication by any Financing Entity with respect to any actual or threatened breach, default (or allegation thereof), repudiation by any party to the Debt Commitment Letter or any Definitive Debt Financing Agreement or any refusal to provide, or stated intent that it will not provide, by any Financing Entity, the full amount of the Debt Financing contemplated by the Debt Commitment ~~Letter, Alternative Financing or definitive financing agreements related thereto~~ Letter for any reason or (4iv) ~~the receipt of notice of~~ Parent’s good faith belief, for any ~~material dispute~~ reason, that it may no longer be able to obtain all or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed any portion of the ~~status of Purchaser’s~~ Debt Financing contemplated by the Debt Commitment Letter on the terms and ~~its Affiliates’ efforts to arrange the Financing or Alternative Financing~~conditions described therein. (b) ~~Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser~~ Parent shall not, and shall cause its Affiliates not to, without the prior written consent of ~~▇▇▇▇▇▇~~the Company, (i) permit any ~~termination,~~ amendment or modification to, or any waiver of any provision or remedy under, or replacement of, the Debt Commitment Letter or ~~Fee Letters~~ the Definitive Debt Financing Agreements if such ~~termination,~~ amendment, modification, waiver or ~~remedy~~ replacement (A) adds any new (or adversely modifies any existing) conditions to the ~~Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation~~ funding of all or any portion of the Debt Financing ~~to below~~ in a ~~level~~ manner that would ~~impair Purchaser’s ability~~ reasonably be expected to ~~consummate~~ prevent, impede or materially delay the ~~Transactions~~Closing, (B) reduces the ~~committed~~ aggregate amount of the Debt Financing (unless the aggregate amount of the Debt Financing, as so reduced, when taken together with any equity commitment available to Parent, Holdco, Holdco II and Merger Subsidiary and/or cash otherwise available to Parent and/or the Company, would be sufficient to fund the Transaction Amounts as and when due), (C) adversely affects ~~in any material respect~~ the ability of ~~Purchaser~~ Parent to enforce its rights against the other parties to the Debt Commitment Letter or the ~~definitive agreements~~ Definitive Debt Financing Agreements, in ~~respect thereof~~each case, as so amended, modified or waived, relative to the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date of this Agreement or (D) could otherwise reasonably be expected to prevent, impede or materially delay ~~in any material respect~~ the consummation of the ~~Closing~~ Merger or the ~~Transactions,~~ other transactions contemplated by this Agreement or (ii) ~~undertake~~ terminate the Debt Commitment Letter (other than upon the effectiveness of the applicable Definitive Debt Financing Agreement or as otherwise expressly permitted by Section 7.04(b) or Section 7.04(c)) or any ~~merger~~Definitive Debt Financing Agreement; provided, ~~acquisition~~however, ~~joint venture~~that, ~~disposition~~notwithstanding the foregoing, ~~lease~~Parent may make customary modifications or amendments solely to (x) join additional lenders, ~~Contract~~ arrangers, bookrunners or ~~debt or equity financing that~~ agents to the Debt Commitment Letter as contemplated thereunder if the addition of such Persons, individually and in the aggregate, could not reasonably be expected to prevent, impede or materially ~~impair,~~ delay ~~or prevent~~ the consummation of the ~~Financing~~ Merger or the other transactions contemplated by this Agreement (it being understood that the aggregate commitments of the Lenders party to the Debt Commitment Letter prior to such amendment or modification (but not the aggregate commitments thereunder, unless the aggregate amount of the Debt Financing under such commitments, as so reduced, when taken together with any ~~Alternative Financing contemplated by any new debt~~ equity commitment ~~letter.~~ available to Parent, Holdco, Holdco II and Merger Subsidiary and/or cash otherwise available to Parent and/or the Company, would be sufficient to fund the Transaction Amounts as and when due) may be reduced in the amount of such additional party’s commitment) or (cy) ~~Prior to~~ implement the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser “flex” provisions of the fee letter entered into in connection with the ~~Financing (provided~~ Debt Commitment Letter. Upon any such amendment, modification, waiver or replacement that ~~such requested cooperation does not unreasonably interfere~~ is permitted in accordance with the ~~ongoing operations~~ provisions of ~~Seller~~this Section 7.04(b) or Section 7.04(c), ~~▇▇▇▇▇▇~~ the terms “Debt Commitment Letter” and ~~their respective Affiliates). Such assistance~~ “Definitive Debt Financing Agreement” shall ~~include~~ mean the ~~following: (i) assisting in preparation for and participation in customary marketing efforts related to the~~ Debt Commitment Letter or Definitive Debt Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative FinancingAgreement, as applicable, ~~and (B) materials for rating agency presentations~~as so amended, ~~(iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect~~ modified, waived or replaced. Parent shall promptly deliver to the ~~pledging~~ Company copies of ~~collateral~~any amendment, ~~if applicable. In addition~~modification, ~~Seller will use its reasonable best efforts to provide to Purchaser and~~ waiver or replacement of the ~~Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets~~ Debt Commitment Letter or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are madeDefinitive Debt Financing Agreements. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Cantaloupe, Inc.), Merger Agreement (Cantaloupe, Inc.)

Financing. (a) Each Purchaser ~~and Purchaser Parent each~~ 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 consummate and obtain ~~and to consummate~~ the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the applicable Financing on the terms and conditions (including the flex provisions) ~~contained~~ described in the applicable Commitment ~~Letter~~Letters (or, ~~subject to any amendments or modifications thereto permitted by Section 6.13(b)~~if available, ~~(iii) satisfy~~ on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition other terms that are acceptable to the ~~Financing and due and payable by~~ applicable Purchaser in its sole discretion, so long as such other terms do not include or ~~its Affiliates,~~ result in a Prohibited Modification (ivas defined below)) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall ~~use its reasonable best efforts~~ not agree to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, permit (i) ~~permit~~ in the case of the applicable Equity Commitments Letters, any early termination, replacement, amendment or modification tothereof, or any waiver of any provision thereunder (except any amendment or ~~remedy under~~modification to increase the amount of Equity Financing available thereunder or any termination, replacement, amendment or modification expressly provided for therein) or (ii) in the case of the applicable Debt Commitment ~~Letter~~ Letters, any early termination, replacement, amendment or ~~Fee Letters if~~ modification thereof, or any waiver of any provision thereunder, except in the case of this clause (ii) any such termination, replacement, amendment, ~~modification,~~ modification or waiver ~~or remedy~~ that would not (A) ~~adds~~ reduce the aggregate amount of the applicable Debt Financing to an amount that, together with the amount of the applicable Equity Financing, would be less than the amount required to fund the applicable Required Amount or (B) impose new or additional conditions or otherwise expand or adversely amend or adversely modify any of the conditions to the ~~Financing, (B) modifies any existing conditions to~~ receipt of the applicable Financing in a manner that ~~affects~~ would reasonably be expected to (x) delay (taking into account the ~~consummation~~ expected timing of ~~all~~ Closing pursuant to Section 2.3) or ~~any portion~~ prevent the funding of the applicable Financing ~~to below a level that would impair Purchaser’s ability to consummate the Transactions,~~ (~~B) reduces the committed amount~~ or satisfaction of the ~~Financing,~~ conditions to the applicable Financing (Ctaking into account the expected timing of Closing pursuant to Section 2.3)) on the Closing Date or (y) adversely ~~affects in any material respect~~ impact the ability of such Purchaser to enforce its rights against other parties to the applicable Commitment ~~Letter or~~ Letters or, if and to the extent in effect, the definitive agreements with respect thereto or to consummate the transactions contemplated hereby (the effects described in clauses (A) and (B), collectively, “Prohibited Modifications”); provided, that Zayo Purchaser may amend the Zayo Debt Commitment Letter and EQT Purchaser may amend the EQT Debt Commitment Letter, in each case, in a customary manner to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the applicable Debt Commitment Letter as of the date hereof. The applicable Purchaser shall promptly deliver to Parent copies of any such early termination, amendment, modification, waiver or replacement. (b) Each Purchaser shall use reasonable best efforts (A) to maintain in effect the applicable Commitment Letters, (B) taking into account the expected timing of Closing pursuant to Section 2.3, to negotiate and enter into on the Closing Date definitive agreements with respect to the applicable Debt Financing on the terms and conditions (including the flex provisions) described or contemplated in the applicable Debt Commitment Letter (or, if available, on other terms that are acceptable to such Purchaser in its sole discretion, so long as such other terms do not include or result in a Prohibited Modification), (C) to enforce its rights under the applicable Commitment Letters and, if and to the extent in effect, the definitive documentation in respect ~~thereof~~of the applicable Debt Financing, or (D) ~~could otherwise~~ to comply in all material respects with its obligations under each of the applicable Commitment Letters and (E) to satisfy (and cause its Affiliates to satisfy) on a timely basis (or, if reasonably required to obtain the applicable Debt Financing, seek the waiver of) all conditions to the funding or investing of the applicable Financing applicable to such Purchaser and its Affiliates in the applicable Commitment Letters and the definitive agreements related thereto that are within the control of, and are to be satisfied by, such Purchaser or its Affiliates. Each Purchaser shall keep Parent informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the applicable Debt Financing and, upon written request to such Purchaser, provide to Parent executed copies of the definitive agreements for the applicable Debt Financing. Each Purchaser shall give Parent prompt notice, and keep Parent informed on a reasonably current basis and in reasonable detail, of (i) any actual material breach, material default, termination(other than in accordance with its terms) or repudiation by any party to any applicable Commitment Letter or, if and to the extent in effect, definitive documents related to any applicable Debt Financing of which such Purchaser becomes aware; (ii) the receipt by such Purchaser (or any of its respective Affiliates) of any written notice or other written communication from any Debt Financing Source or any Sponsor party to any applicable Equity Commitment Letter with respect to any (A) actual or potential material breach, material default, termination (other than in accordance with its terms) or repudiation by any party to any applicable Commitment Letter or, if and to the extent in effect, any definitive document related to the applicable Debt Financing or any provisions of any applicable Commitment Letter or, if and to the extent in effect, any definitive document related to the applicable Debt Financing or (B) material dispute or disagreement between or among any parties to any applicable Commitment Letter or, if and to the extent in effect, any definitive document related to the applicable Debt Financing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the applicable Debt Financing or any definitive documents related thereto); and (iii) if and when such Purchaser becomes aware that all or any portion of the applicable Financing may not be available on the Closing Date on the terms and conditions set forth in the applicable Commitment Letters. As soon as reasonably practicable after Parent delivers to the applicable Purchaser a written request, such Purchaser shall provide any information reasonably requested by Parent relating to any circumstance referred to in the immediately preceding sentence with respect to such Purchaser or the applicable Financing; provided that in no event shall any Purchaser be required to share any information with Parent that is subject to attorney-client or other privilege (provided, that, such Purchaser shall work in good faith to use reasonable best efforts to provide access to or disclose any such information in a manner which would not jeopardize such privilege). If any portion of any Purchaser’s applicable Debt Financing becomes unavailable, such Purchaser shall use its reasonable best efforts to arrange and obtain in replacement thereof, as promptly as reasonably practicable, alternative financing from the same or alternative sources in an amount sufficient, when taken together with the available portion of the applicable Debt Financing and the applicable Equity Financing, to fund the applicable Required Amount on the Closing Date (“Alternative Financing”); provided that in no event shall any Purchaser be required to, and in no event shall its reasonable best efforts be deemed or construed to require that it (A) obtain Alternative Financing that (1) includes terms (including any “market flex” provisions applicable thereto), taken as a whole, that are materially less favorable to such Purchaser than those contained in the applicable Debt Commitment Letter (including any “market flex” provisions applicable thereto) in effect on the date hereof (it being understood that any fees (based on a percentage of funds) or any interest rate amounts or original issue discounts, in each case, in excess of those contemplated by the applicable Debt Commitment Letter as in effect on the date hereof (taking into account any “market flex” provisions contained therein) shall be deemed to be materially less favorable to such Purchaser), (2) involves any conditions to funding of the applicable Debt Financing that are not contained in the applicable Debt Commitment Letter as in effect on the date hereof or (3) would reasonably be expected to prevent, ~~impede~~ impede, or delay ~~in any material respect~~ the consummation of the ~~Closing~~ transactions contemplated by this Agreement, (B) seek or obtain any equity financing in excess of the ~~Transactions~~amount provided for in, or from a Person other than the counterparties to, the applicable Equity Commitment Letters as in effect on the date of this Agreement, (D) amend or waive any of the terms or conditions hereof or under the applicable Debt Commitment Letter or (E) share any information with Parent that is subject to attorney-client or other privilege if Purchaser shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege; provided, further, that failure to obtain Alternative Financing shall not relieve any Purchaser of any obligation hereunder. Each Purchaser shall promptly deliver true, correct and complete copies of any debt commitment letter and related fee letter (in the case of any such fee letter, redacted in a manner consistent with the applicable Redacted Fee Letter) pursuant to which any such alternative source shall have committed to provide any Alternative Financing to such Purchaser (the “Alternative Financing Commitment Letter”). As applicable, references in this Agreement (other than with respect to representations in this Agreement made by such Purchaser that speak as of the date hereof) to (i) “Debt Financing” (or “Zayo Debt Financing” or “EQT Debt Financing”, as applicable) shall include any such Alternative Financing and (ii) ~~undertake~~ “Debt Commitment Letter” (or “Zayo Debt Commitment Letter” or “EQT Debt Commitment Letter”, as applicable) shall include any ~~merger~~such Alternative Financing Commitment. Each Purchaser will fully pay, ~~acquisition~~or cause to be paid, ~~joint venture, disposition, lease, Contract~~ all commitment and other fees under or ~~debt or equity financing that could reasonably be expected~~ arising pursuant to ~~materially impair, delay or prevent consummation of~~ the ~~Financing contemplated by the~~ applicable Debt Commitment Letter that are due and payable on or ~~any Alternative Financing contemplated by any new debt commitment letter~~prior to the Closing Date as and when they become due and payable. (c) Prior to the ~~Closing~~Closing Date, ~~Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense,~~ Parent shall use reasonable best efforts to, and shall use its reasonable best efforts to cause the Transferred Entities to use their reasonable best efforts to, and shall use its reasonable best efforts to cause its and their respective Representatives to use reasonable best efforts to, provide ~~to Purchaser~~ such cooperation as is reasonably requested by each Purchaser in connection with the applicable Debt Financing, any applicable ABS Financing or any other permitted replacement, amended, modified or alternative financing (~~provided that such requested cooperation does not unreasonably interfere~~ with respect to any Purchaser, collectively with the ~~ongoing operations~~ applicable Debt Financing and any applicable ABS Financing, the applicable “Available Financing”), in each case at the sole cost and expense of ~~Seller~~the applicable Purchaser, ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ including, without limitation: (i) ~~assisting~~ furnishing such Purchaser and any Debt Financing Source in respect of the applicable Available Financing, promptly following such Purchaser’s request, with such customary and pertinent financial information, operating data, business and other information (including diligence information) regarding the applicable Business and the related Transferred Entities (including information to be used in the preparation ~~for and participation~~ of one or more information packages regarding the applicable Business) as reasonably requested by such Purchaser in ~~customary~~ connection with the arrangement or marketing ~~efforts related to~~ of the applicable Available Financing or the ~~Alternative~~ preparation of any definitive documentation or any syndication, offering or other similar marketing materials and/or documents (including any offering memorandum) or rating agency or lender presentations relating to, or in connection with, the applicable Available Financing~~, as applicable with prospective lenders, investors and ratings agencies~~, (ii) ~~assisting Purchaser and~~ furnishing such Purchaser, promptly following such Purchaser’s request, with the ~~Financing Sources~~ applicable Required Information (including any updates thereto as may be reasonably necessary in the ~~preparation~~ discretion of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing such Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with ~~the Financing or the cooperation contemplated by this Section 6.13(d~~any Available Financing), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.,

Appears in 1 contract

Sources: Stock Purchase Agreement (Crown Castle Inc.)

Financing. (a) ~~Purchaser and Purchaser~~ Neither Parent ~~each~~ nor Merger Sub shall ~~use its reasonable best efforts~~ agree to ~~take~~any amendment, replacement, supplement or other modification of, or ~~cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain and to consummate the Financing (~~waive any of its rights or any ~~Alternative Financing) on~~ rights in favor of the ~~terms and conditions described in the~~ Company under, any Financing Commitment ~~Letter (including the flex provisions~~ or any definitive agreements related ~~thereto), subject~~ to any ~~amendments or modifications thereto permitted by Section 6.13(b)~~Financing Commitment, ~~including using its reasonable best efforts to (i) maintain~~ in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall noteach case, without the prior written consent of ~~▇▇▇▇▇▇~~the Company (including any such amendment, ~~(i) permit any termination~~replacement, ~~amendment~~ supplement or other modification ~~to,~~ to or ~~any~~ waiver of any provision of the Financing Commitments that amends, supplements or ~~remedy under~~otherwise modifies the conditions precedent to the Financing Commitments), ~~the Commitment Letter or Fee Letters~~ if such ~~termination,~~ amendment, ~~modification~~replacement, supplement or other modification of, or waiver of any provision would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing below the amount of cash funded at Closing required to consummate the Merger and repay or ~~remedy~~ refinance the debt contemplated in this Agreement or in the Financing Commitments including all fees and expenses related in each case thereto (Aincluding by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees) ~~adds~~ unless the Equity Financing is increased by a corresponding amount (or, in the case of additional fees or original issue discount, such Debt Financing permits such amounts to be funded under a revolving credit facility at Closing) or (y) impose new or additional conditions or otherwise amend or expand any conditions to the ~~Financing,~~ receipt of the Debt Financing that would reasonably be expected to (B1) ~~modifies any existing~~ expand the conditions precedent or contingencies to the ~~Financing~~ funding at Closing in a manner that ~~affects~~ would be reasonably likely to make the ~~consummation of all or any portion~~ funding of the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate the Transactions,~~ (~~B) reduces the committed amount~~ or satisfaction of the conditions to obtaining the Debt Financing~~, (C~~) ~~adversely affects in any material respect the ability of Purchaser~~ less likely to ~~enforce its rights against other parties to the Commitment Letter~~ occur or ~~the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede~~ prevent or delay ~~in any material respect~~ the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.transactions

Appears in 1 contract

Sources: Merger Agreement (Transunion Corp.)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser Parent each~~ conditions of this Agreement, Buyer shall use its reasonable best efforts (unless, with respect to ~~take~~any action, ~~or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable~~ another standard for performance is expressly provided for herein) to obtain ~~and to consummate~~ the Committed Financing (or taking into account any ~~Alternative Financing~~reductions thereof pursuant to Section 6.15(b)(I)(A)) on the terms and conditions ~~described~~ set forth in the Commitment Letter (taking into account the anticipated timing of the Marketing Period Termination Date), and Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing), such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Committed Financing (including by increasing the ~~flex provisions related thereto~~amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than any reductions permitted pursuant to Section 6.15(b)(I)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date or (y) adversely impact the ability of Buyer to enforce its rights against the other parties to the Commitment Letter in any material respect (provided that, subject to compliance with the other provisions of this Section 6.15, Buyer may amend the Commitment Letter or such definitive documents to add additional lenders, arrangers and agents). Buyer shall promptly deliver to Seller copies of any ~~amendments~~ such amendment, modification or ~~modifications thereto~~ replacement. For purposes of this Section 6.15 and Section 5.8 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source and the Marketing Period Termination Date, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter as permitted by this Section ~~6.13(b)~~6.15(a) to be amended, ~~including using~~ modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 6.15(a) to be amended, modified or replaced. (b) Buyer shall (I) use its reasonable best efforts (taking into account the anticipated timing of the Marketing Period Termination Date) to (iA) maintain in effect the Commitment ~~Letter~~Letter in accordance with the terms and subject to the conditions thereof, provided that, subject to clause (IV) of this sentence and to the penultimate sentence of this Section 6.15(b), Buyer may, without Seller’s consent, reduce the amount of the Committed Financing under the Commitment Letter to the extent that the remaining amount of the Committed Financing under the Commitment Letter after such reduction, taken together with the net cash proceeds of one or more offerings, placements, sales and/or other issuances of debt and/or equity securities of or term loans to Buyer that are placed into escrow for use solely in paying amounts payable by Buyer at the Closing pursuant to this Agreement, is no less than $10,540,000,000 less the Debt Obligations, (iiB) negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions ~~(including the flex provisions)~~ contained in the Commitment ~~Letter, subject to any amendments~~ Letter (or ~~modifications thereto permitted by Section 6.13(b), (iii) satisfy~~ on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on other terms ~~and conditions~~ not materially less favorable to Buyer (or its Subsidiaries), as determined in the ~~aggregate to Purchaser and its Affiliates~~ reasonable judgment of Buyer after consultation with Seller, than the terms and conditions set forth in the Commitment Letter and that ~~would~~ do not ~~have any~~ materially impair the ability of Buyer to fund its obligations at the ~~effects prohibited pursuant~~ Closing Date), (C) satisfy all conditions to ~~amendment by Section 6.13(b)~~ funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (~~such financing,~~ the “~~Alternative Financing~~Committed Financing Sources”)~~. Purchaser shall~~ , (AD) ~~give ▇▇▇▇▇▇~~ enforce its rights under the Commitment Letter and ~~Seller prompt oral~~ any definitive agreements with respect thereto and ~~written notice of~~ (1E) ~~any breach or default by Purchaser or~~ comply with its ~~Affiliates of~~ obligations under the Commitment Letter, ~~Alternative~~ (II) not use any net proceeds received and placed in escrow as contemplated in this Section 6.15(b) from any Financing ~~or definitive financing agreements~~ other than to fund amounts required to be paid by Buyer pursuant to this Agreement at Closing and fees and expenses related ~~thereto~~to the Financing and the transactions contemplated hereby, (2III) maintain cash on hand or access to other liquid sources of funding in an amount sufficient to make all payments required to be made by Buyer related to the transactions contemplated hereby, including any ~~known~~ Required Payment Amount (the amount of which, solely for this purpose, shall be estimated in the good faith judgment of Buyer from time to time, to the extent such amount is not finally determined) and (IV) not take any action that would cause the amount of the Committed Financing to be reduced to the extent that the remaining amount of the Committed Financing under the Commitment Letter after such reduction, taken together with the net cash proceeds of one or more offerings, placements, sales and/or other issuances of debt and/or equity securities of or term loans to Buyer, as contemplated by the Commitment Letter and the related fee letter, that are placed into escrow (which escrow complies with the penultimate sentence of this Section 6.15(b)) for use solely in paying amounts payable by Buyer at the Closing pursuant to this Agreement, is less than $10,540,000,000 less the Debt Obligations. The conditions for the release of funds from any escrow referred to in this Section 6.15(b) shall include no new, additional or modified conditions beyond those applicable to the Committed Financing to the extent that such new, additional or modified conditions would reasonably be expected to prevent or materially delay the Closing or the availability of the escrowed funds on the Closing Date. (c) Without limiting the generality of the foregoing, Buyer shall give Seller prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which Buyer has Knowledge, (~~other than Purchaser or its Affiliates~~y) of the ~~Commitment Letter~~receipt of any notice or other communication, ~~Alternative~~ in each case from any Committed Financing Source with respect to any actual or ~~definitive financing agreements related thereto~~potential material breach, ~~(3) any purported~~ material default, termination or repudiation by any party ~~of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties~~ to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or ~~Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions~~ definitive agreements relating to the ~~Financing, (B) modifies~~ Committed Financing of any ~~existing conditions~~ provisions of the Commitment Letter or definitive agreements relating to the Committed Financing ~~in a manner~~ and (z) if at any time for any reason Buyer believes that ~~affects the consummation of~~ it will not be able to obtain all or any portion of the Committed Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ on the ~~Transactions~~terms and conditions, ~~(B) reduces~~ in the ~~committed amount of~~ manner or from the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Seller delivers to Buyer a written request, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable, or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, Buyer shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the Committed Financing or such unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 6.15(b)(I)(A)), with terms and conditions not materially less favorable to Buyer (or its Subsidiaries), as determined in the reasonable judgment of Buyer after consultation with Seller, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 6.15 be construed so as to require Buyer or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to Buyer, as determined in the reasonable judgment of Buyer after consultation with Seller, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing ~~contemplated by~~ shall be permitted to be in the form of any ~~new debt commitment letter~~such equity financing). Buyer shall deliver to Seller true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing. (cd) ~~Prior to~~ From and after the date of this Agreement, and through the earliest of the Closing, the date on which this Agreement is terminated in accordance with Article IX and the completion of the Committed Financing, Seller ~~and ▇▇▇▇▇▇~~ shall, ~~at Purchaser’s cost~~ and ~~expense~~Seller shall cause each of its Subsidiaries and each of its and their representatives to, use its respective reasonable best efforts toto provide all cooperation that is necessary, customary or advisable and ~~to cause its Representatives to, provide to Purchaser such cooperation as is~~ reasonably requested by ~~Purchaser~~ Buyer to assist Buyer in the arrangement of the Committed Financing and any public or private offering, sale, placement or other issuance of debt and/or equity securities undertaken in replacement of all or a portion of the Committed Financing (the “Securities Financing” and, together with the Committed Financing, the “Financing”) for the purposes of financing the Purchase Price and any other amounts required to be paid in connection with the consummation of the transactions contemplated hereby and all related fees and expenses of Buyer (it being acknowledged and agreed by Buyer that the receipt of such Financing is not a condition to the Closing), including (~~provided that such requested cooperation does not unreasonably interfere~~ A) participating in a reasonable number of meetings, road shows, rating agency sessions and drafting sessions, and participating in reasonable and customary due diligence, (B) furnishing Buyer and the Committed Financing Sources with the ~~ongoing operations of Seller~~Required Information, ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ (iC) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser Buyer and the Committed Financing Sources in the preparation of (A1) ~~a customary~~ offering ~~document, private placement memorandum and/or bank information memorandum and similar marketing~~ documents for the Financing ~~or the Alternative Financing, as applicable,~~ and (B2) materials for rating agency presentations, bank confidential information memoranda, pro forma financial statements and similar documents in connection with the Financing, (~~iii~~D) reasonably cooperating with the marketing efforts for any portion of the Financing, (E) using its reasonable efforts to cause its independent accountants to provide assistance and cooperation in the Financing, including (1) participating in a reasonable number of drafting sessions and accounting due diligence sessions, (2) providing any necessary customary consents to use or file with the SEC their audit reports relating to the Transferred Business and (3) providing any necessary customary “comfort letters,” (F) causing the Transferred Companies to execute and deliver customary definitive financing documents to the extent reasonably requested by Buyer and otherwise facilitating the pledging of collateral reasonably necessary to secure the Financing; provided that the effectiveness of any definitive documentation executed by the Transferred Companies or the pledging of collateral by the Transferred Companies shall be subject to the occurrence of the Closing and (G) furnishing ~~Purchaser~~ Buyer and ~~the~~ any Committed Financing Sources promptly, and in any event at least five (5) Business Days prior to the ~~Required Information;~~ Closing Date, with all documentation and ~~(iv) facilitating Purchaser’s preparation of documentation~~ other information required by any Governmental Entity with respect to the ~~pledging~~ Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of ~~collateral~~2001, ~~if applicable~~as amended. ~~In addition, Seller will use its reasonable best efforts~~ Nothing herein shall require such cooperation to ~~provide to Purchaser and~~ the ~~Financing Sources~~ extent it would (A) unreasonably disrupt the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light conduct of the ~~circumstances under which such statements are made. (d) Notwithstanding the foregoing~~business or operations of Seller or its Subsidiaries, (iB) ~~none of ▇▇▇▇▇▇,~~ require Seller or any of ~~their respective Affiliates or other Representatives shall be required~~ its Subsidiaries to pay any commitment or other similar ~~fee, provide any security, execute any document, make any representations, provide any indemnification~~ fee or incur any other cost or expense that is not reimbursed by Buyer or ~~Liability~~ otherwise incur any liability or give any indemnities, in connection with the ~~Financing or the cooperation contemplated by this Section 6.13(d)~~Financing; provided, ~~(ii) none of ▇▇▇▇▇▇~~however, that Seller ~~or any of their respective Affiliates or other Representatives~~ shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates responsible for ~~all out-of-pocket~~ such fees, costs and expenses incurred by Seller in connection with preparing and delivering any of ~~them~~ the Financial Statements provided for in Sections 6.18(a) or 6.18(b), or (C) require Seller or any of its Subsidiaries to take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the certificate of incorporation or by-laws or other comparable organizational documents of Seller or any of its Subsidiaries, any applicable Laws or any material Contract. In addition, nothing herein shall require Seller or any of its Subsidiaries or any of its representatives to deliver legal opinions. In furtherance of and without limitation to the second immediately preceding sentence, nothing herein shall require Seller or any of its Subsidiaries to, enter into any agreement (or require their respective boards of directors or equivalent governing bodies to approve any such agreement) in connection with the Financing. Except for the fees, costs and expenses incurred by Seller in connection with preparing and delivering any of the Financial Statements provided for in Sections 6.18(a) or 6.18(b), Buyer shall promptly, upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket third party costs and expenses (including reasonable attorneys’ ~~fees and other fees and expenses as incurred~~fees) incurred by Seller or any of its Subsidiaries or their respective representatives in connection with the ~~cooperation contemplated by this Section 6.13(d)~~ Financing and shall indemnify and hold harmless ~~▇▇▇▇▇▇~~Seller, ~~Seller~~ its Subsidiaries and their respective ~~Affiliates~~ representatives from and against any and all ~~Liabilities~~ losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution arrangement of the Financing and any information used in connection therewith (other than arising from fraud, intentional misrepresentation, misstatements or ~~execute or deliver any certificate, document, instrument or agreement that is effective prior to~~ omissions on the ~~Closing or agree to any change or modification~~ part of ~~any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser~~ Seller or its ~~Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04~~Affiliates). (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Securities Purchase Agreement (Verizon Communications Inc)

Financing. (a) ~~Purchaser~~ Parent and ~~Purchaser Parent~~ Merger Sub shall each ~~shall~~ use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment ~~Letter (including~~ Letter. Notwithstanding anything in this Agreement to the ~~flex provisions related thereto)~~contrary, Parent and Merger Sub shall, subject to ~~any amendments or modifications thereto permitted by Section 6.13(b~~prior written consent of the Special Committee (on behalf of the Company), ~~including using~~ which consent shall not be unreasonably withheld, have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its ~~reasonable best efforts to (i) maintain in effect~~ rights under, the Commitment Letter, any definitive agreements with respect to the Financing pursuant to the Commitment Letter, and/or alternative financing for all or any portion of the Financing pursuant to the Commitment Letter from the same and/or alternative financing sources; provided, that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or such definitive agreements that amends the Financing pursuant to the Commitment Letter and/or substitution of all or any portion of the Financing pursuant to the Commitment Letter shall not (i) reduce the aggregate amount of Financing, together with available Company cash, below the amount required to consummate the Merger, (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing, (iii) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (iv) adversely impact the ability of Parent or Merger Sub to enforce their respective rights against the other parties to the Financing Documents. Parent shall promptly deliver to the Company copies of any such amendment, replacement, supplement, modification or waiver. In addition, Parent and Merger Sub shall use their respective commercially reasonable efforts to (A) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions ~~(including the flex provisions)~~ contained in the Commitment Letter, ~~subject~~ or on other terms reasonably acceptable to ~~any amendments or modifications thereto permitted by~~ Parent and not in violation of this Section ~~6.13(b~~6.8(a), (~~iii~~B) satisfy on a timely basis all conditions ~~applicable to Purchaser or its Affiliates contained~~ in the Commitment ~~Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or~~ Letter that are within its ~~Affiliates~~control, (ivC) ~~upon the satisfaction or waiver of such conditions,~~ consummate the Financing on in an amount, together with available Company cash, that is sufficient to fund the Merger Consideration at or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, Effective Time and (viD) ~~comply with~~ enforce its ~~obligations~~ rights under the Commitment Letter. ~~If Purchaser~~ In the event that all conditions to funding under the Financing Documents have been satisfied, Parent and Merger Sub shall use their respective commercially reasonable efforts to cause the Lender to fund the Financing required to consummate the transactions contemplated under this Agreement, including the Merger in accordance with the terms of this Agreement (including taking enforcement actions to cause such Persons to provide such financing). For purposes of this Section 6.8, references to “Financing” shall include the financing contemplated by the Financing Documents as permitted in the case of the Commitment Letter, to be amended, replaced or ~~Purchaser Parent becomes aware of any~~ supplemented by this Section 6.8(a) and references to “Financing Documents” and “Commitment Letter” shall include such documents as permitted to be replaced, amended or supplemented by this Section 6.8(a). In the event ~~or circumstance that makes procurement of~~ any portion of the Financing ~~reasonably unlikely to occur in~~ becomes unavailable on the ~~manner or from the sources~~ terms and conditions contemplated in the Commitment Letter, ~~Purchaser~~ (x) Parent shall promptly notify the Company and use its commercially reasonable efforts to arrange to obtain alternative financing from the same or alternative sources on terms not materially less beneficial to Parent and Merger Sub (as determined in the reasonable judgment of Parent), as promptly as practicable following the occurrence of such event, (y) the term “Commitment Letter” in this Section 6.8 shall be deemed to include any new financing commitment entered into with respect to obtaining such alternative financing, as well as any modified commitment letters entered into in accordance with this Section 6.8 and (z) the obligations under this Section 6.8 shall apply equally to any such alternative financing (including any new financing commitment). Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the alternative financing. Parent shall promptly notify the Company of any material breach or default (or any other breach or default that could reasonably be expected to adversely affect the timely availability of the Financing to be provided by the Commitment Letter in any ~~event within two~~ material respect) of which Parent or Merger Sub has become aware by any party to the Commitment Letter or any written notice, proposal or other communication by any financing party named in a Commitment Letter to withdraw, repudiate or terminate such Commitment Letter. (2b) ~~Business Days) notify ▇▇▇▇▇▇ and Seller and~~ Parent shall use its reasonable best efforts to ~~arrange as promptly as practicable any such portion from alternative sources~~ consummate the transactions contemplated by the Contribution Agreement immediately prior to the Closing on ~~terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than~~ the terms and conditions ~~set forth~~ described in the ~~Commitment Letter~~ Contribution Agreement and ~~that would~~ shall not ~~have~~ agree to any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to be made to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level Contribution Agreement that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to (in the Special Committee’s good faith judgment) prevent, materially delay or materially impede ~~or delay in any material respect~~ the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing transactions contemplated ~~by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter~~hereby. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Winner Medical Group Inc)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser~~ conditions of this Agreement, Parent shall and shall cause each ~~shall use~~ of its ~~reasonable best efforts~~ Subsidiaries to take, or cause to be taken, all ~~actions~~ appropriate actions, and to do, or cause to be done, all things necessary, proper or advisable to obtain ~~and~~ funds sufficient to ~~consummate~~ fund the Financing Amounts on or prior to the date on which the Merger is required to be consummated pursuant to the terms hereof (taking into account the anticipated timing of the Marketing Period). In furtherance and not in limitation of the foregoing, Parent shall take, or ~~any Alternative Financing)~~ cause to be taken, all reasonable actions and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing on the terms and conditions ~~described~~ not less favorable to Parent than those contained in the Commitment Letters and the Fee Letter (including any “market flex” provisions that are contained in the ~~flex provisions related thereto), subject~~ Fee Letter) as promptly as possible (taking into account the anticipated timing of the Marketing Period) but in any event prior to ~~any amendments or modifications thereto permitted by Section 6.13(b)~~the date on which the Merger is required to be consummated pursuant to the terms hereof, including ~~using its reasonable best efforts to~~ by (i) ~~maintain~~ maintaining in effect the Commitment ~~Letter~~Letters (subject to Parent’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Commitment Letters in accordance herewith), (ii) ~~negotiate~~ negotiating and ~~enter~~ entering into definitive agreements with respect to the Financing on (the ~~terms and conditions (including the flex provisions~~“Definitive Agreements”) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not ~~materially~~ less favorable to Parent than those contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) and without any Prohibited Modification, (iii) satisfying on a timely basis (taking into account the ~~aggregate to Purchaser and its Affiliates than~~ anticipated timing of the ~~terms and~~ Marketing Period), or otherwise obtaining waiver of, all conditions ~~set forth~~ in the Commitment ~~Letter~~ Letters and the Definitive Agreements that ~~would not have any of the effects prohibited pursuant to amendment by Section 6.13(b~~are within Parent’s control and complying with its obligations thereunder and (iv) ~~(such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or~~ enforcing its ~~Affiliates of~~ rights under the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative FinancingLetters. (b) ~~Notwithstanding anything to the contrary~~ Other than as set forth in this ~~Agreement~~Section 7.14(b) or Section 7.14(c), ~~Purchaser and Purchaser~~ neither Parent ~~shall not~~nor any of its Subsidiaries shall, without the prior written consent of ~~▇▇▇▇▇▇~~the Company, ~~(i) permit~~ permit, consent to or agree to any ~~termination~~amendment, ~~amendment~~ replacement, supplement, termination or modification to, or any waiver of of, any provision or remedy ~~under~~under (i) the Equity Commitment Letters, (ii) the Preferred Equity Commitment Letter or (iii) the Debt Commitment Letter or the Definitive Agreements (it being understood that the exercise of any “market flex” provisions contained in the Fee ~~Letters if such~~ Letter shall not be deemed an amendment, replacement, supplement, termination, modification or waiver) if, in the case of clauses (ii) and (iii) hereof, such amendment, replacement, supplement, modification, waiver or remedy (A) adds new (or adversely modifies any existing) conditions to ~~the Financing, (B) modifies any existing conditions to the Financing in a manner that affects~~ the consummation of all or any portion of the ~~Financing to below a level that would impair Purchaser’s ability to consummate the Transactions~~Financing, (B) reduces the ~~committed~~ aggregate principal amount of the Debt Financing or the Preferred Equity Financing, (C) adversely affects ~~in any material respect~~ the ability of ~~Purchaser~~ Parent to enforce its rights against other parties to the Debt Commitment Letter, Preferred Equity Commitment Letter or the ~~definitive agreements in respect thereof~~Definitive Agreements as so amended, replaced, supplemented or otherwise modified or (D) could otherwise reasonably be expected to prevent, impede or delay ~~in any material respect~~ the consummation of the ~~Closing~~ Merger and the other transactions contemplated by this Agreement (the effects described in clauses (i) through (iii), collectively, the “Prohibited Modifications”), provided that Parent may replace, amend, supplement or modify (x) the ~~Transactions~~Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (iior titles with respect to such entities) ~~undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing~~ that ~~could reasonably be expected to materially impair, delay or prevent consummation~~ 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 replacement, amendment, supplement or modification may be reduced in the amount of such additional party’s commitments if such entities are of similar creditworthiness as the Financing ~~contemplated by~~ Parties that have executed the Debt Commitment Letter prior to such replacement, amendment, supplement or modification) and (y) the Preferred Equity Commitment Letter to add investors or similar entities (or titles with respect to such entities) that have not executed the Preferred Equity Commitment Letter as of the date of this Agreement (it being understood that the aggregate commitments of the investors party to the Preferred Equity Commitment Letter prior to such replacement, amendment, supplement or modification may be reduced in the amount of such additional party’s commitments if such investors are of similar creditworthiness as the Financing Parties that have executed the Preferred Equity Commitment Letter prior to such replacement, amendment, supplement or modification). Parent shall reasonably promptly deliver to the Company copies of any amendment, replacement, supplement, termination, modification or waiver to the Commitment ~~Letter or any Alternative Financing contemplated by any new debt commitment letter~~Letters and/or Definitive Agreements. (c) ~~Prior to~~ In the ~~Closing~~event that any portion of the Financing becomes unavailable, ~~Seller~~ regardless of the reason therefor, Parent shall (i) promptly notify the Company in writing of such unavailability and ~~▇▇▇▇▇▇ shall, at Purchaser’s cost~~ the reason therefor and ~~expense,~~ (ii) use reasonable best ~~efforts to~~efforts, and cause each of its Subsidiaries to ~~cause its Representatives to~~use their reasonable best efforts, ~~provide~~ to ~~Purchaser~~ arrange and obtain, as promptly as practicable following the occurrence of such ~~cooperation as is reasonably requested by Purchaser~~ event, alternative financing for any such unavailable portion from the same or alternative sources (the “Alternative Financing”) in ~~connection~~ an amount sufficient, when taken together with the available portion of the Financing, to consummate the transactions contemplated by this Agreement and to pay the Financing (Amounts and that does not include any Prohibited Modifications; provided that ~~such requested cooperation does~~ Parent shall not ~~unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇~~ be required to arrange or obtain any Alternative Financing having terms and ~~their respective Affiliates). Such assistance shall include the following:~~ conditions (iincluding “market flex” provisions) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner thatmaterially less favorable, taken as a whole, ~~does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit~~ to ~~state a material fact necessary to make the statements~~ Parent than those contained ~~therein regarding the Purchased Assets or the Triage Business not materially misleading~~ in the ~~light~~ Debt Commitment Letter and/or the Preferred Equity Commitment Letter, as applicable, and the related Fee Letter. Parent shall provide the Company with prompt notice of any actual breach, default, cancellation, termination or repudiation by any party to the Commitment Letters or any Definitive Agreement. Upon the Company’s request, Parent shall keep the Company reasonably informed on a current basis of the ~~circumstances under which such statements are made~~status of its efforts to consummate the Financing, including any Alternative Financing. (d) ~~Notwithstanding~~ To the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the extent Parent obtains Alternative Financing or ~~the cooperation contemplated by this Section 6.13(d)~~amends, ~~(ii) none of ▇▇▇▇▇▇~~replaces, ~~Seller~~ supplements, terminates, modifies or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of waives any of the ~~foregoing~~Financing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates in each case pursuant to this Section ~~6.13(d~~7.14 and without any Prohibited Modification, references to the “Financing,” “Financing Parties,” “Commitment Letters” and “Definitive Agreements” (and other like terms in this Agreement) shall be ~~subject~~ deemed to ~~the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the~~ refer to such Alternative Financing, ~~Alternative~~ the commitments thereunder and the agreements with respect thereto, or the Financing as so amended, replaced, supplemented, terminated, modified or ~~any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement~~waived.

Appears in 1 contract

Sources: Merger Agreement (Janus Henderson Group PLC)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser Parent each~~ conditions of this Agreement, and except to the extent that Buyer has completed an offering of debt securities or another financing the net cash proceeds of which replace amounts that were to be provided under the Commitment Letter, Buyer shall use its reasonable best efforts (unless, with respect to ~~take~~any action, ~~or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable~~ another standard for performance is expressly provided for herein) to obtain ~~and to consummate~~ the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions ~~described~~ set forth in the Commitment Letter (taking into account the anticipated timing of the Marketing Period Termination Date), and Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter (or following entry into definitive documents relating to the Debt Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or such definitive documents, as applicable, reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the ~~flex provisions related thereto)~~amount of fees to be paid or original issue discount unless the Debt Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Debt Financing, in a manner that would reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Debt Financing on the Closing Date or (y) adversely impact the ability of Buyer to enforce its rights against the other parties to the Commitment Letter, in each of clauses (x) and (y) in any material respect (provided that, subject to compliance with the other provisions of this Section 6.15, Buyer may amend the Commitment Letter or such definitive documents to add additional lenders, arrangers and agents). Buyer shall promptly deliver to Seller copies of any ~~amendments~~ such amendment, modification or ~~modifications thereto~~ replacement. For purposes of this Section 6.15, references to “Debt Financing” shall include the financing contemplated by the Commitment Letter as permitted to be amended, modified or replaced by this Section ~~6.13(b~~6.15(a) and references to “Commitment Letter” shall include such document as permitted to be amended, modified or replaced by this Section 6.15(a). (b) Except to the extent that Buyer has completed an offering of debt securities or another financing the net cash proceeds of which replace amounts that were to be provided under the Commitment Letter, ~~including using~~ (I) Buyer shall use its reasonable best efforts (taking into account the anticipated timing of the Marketing Period Termination Date) (A) to ~~(i)~~ maintain in effect the Commitment ~~Letter~~Letter in accordance with the terms and subject to the conditions thereof, (iiB) to negotiate and enter into definitive agreements with respect to the Debt Financing contemplated by the Commitment Letter on the terms and conditions ~~(including the flex provisions)~~ contained in the Commitment ~~Letter, subject to any amendments~~ Letter (or ~~modifications thereto permitted by Section 6.13(b), (iii) satisfy~~ on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on other terms ~~and conditions~~ not materially less favorable to Buyer (or its Subsidiaries), as determined in the ~~aggregate to Purchaser and its Affiliates~~ reasonable judgment of Buyer, than the terms and conditions set forth in the Commitment Letter and that ~~would~~ do not ~~have any~~ materially impair the ability of Buyer to fund its obligations at the ~~effects prohibited pursuant~~ Closing Date), (C) to ~~amendment by Section 6.13(b)~~ satisfy all conditions to funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and to consummate the Debt Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Debt Financing on the Closing Date (~~such financing,~~ the “~~Alternative Financing~~Debt Financing Sources”)~~. Purchaser shall~~ , (AD) ~~give ▇▇▇▇▇▇~~ to enforce its rights under the Commitment Letter and ~~Seller prompt oral~~ any definitive agreements with respect thereto, and ~~written notice of~~ (1E) ~~any breach or default by Purchaser or~~ to comply with its ~~Affiliates of~~ obligations under the Commitment Letter, ~~Alternative Financing or definitive financing agreements related thereto~~(II) Buyer shall use best efforts to enter into the Bridge Facilities Documentation with the lenders thereto no later than January 30, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto2014, and (BIII) ~~upon request, otherwise~~ Buyer shall not use the financing contemplated by the Bridge Facilities Documentation or the Debt Financing other than to fund the transactions contemplated by this Agreement and related expenses. Buyer shall keep ~~▇▇▇▇▇▇ and~~ Seller reasonably informed of the status of ~~Purchaser~~Buyer’s ~~and its Affiliates’~~ efforts to arrange the Debt Financing ~~or Alternative~~ and shall provide to Seller copies of the executed material definitive agreements for the Debt Financing. (bc) ~~Notwithstanding anything to~~ Without limiting the ~~contrary in this Agreement~~generality of the foregoing, ~~Purchaser and Purchaser Parent~~ Buyer shall ~~not, without the prior written consent of ▇▇▇▇▇▇,~~ give Seller prompt notice (ix) ~~permit any termination, amendment or modification to, or any waiver~~ of any ~~provision~~ breach or ~~remedy under,~~ default by any party to the Commitment Letter or ~~Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions~~ definitive agreements relating to the ~~Financing~~Debt Financing of which Buyer has Knowledge, (By) ~~modifies~~ of the receipt of any ~~existing conditions~~ notice or other communication, in each case from any Debt Financing Source with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter or definitive agreements relating to the Debt Financing ~~in a manner~~ of any provisions of the Commitment Letter or definitive agreements relating to the Debt Financing and (z) if at any time for any reason Buyer believes that ~~affects the consummation of~~ it will not be able to obtain all or any portion of the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ on the ~~Transactions~~terms and conditions, ~~(B) reduces~~ in the ~~committed amount of~~ manner or from the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Debt Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Debt Financing. As soon as reasonably practicable after the date Seller delivers to Buyer a written request, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Debt Financing becoming unavailable, or if any portion of the Debt Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and related fee letter, and such portion is reasonably required to effect the Closing, Buyer shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Debt Financing”) from alternative sources in an amount at least equal to the Debt Financing or such unavailable portion thereof, as the case may be, with terms and conditions not materially less favorable to Buyer (or its Subsidiaries), as determined in the reasonable judgment of Buyer, than the terms and conditions set forth in the Commitment Letter and any related fee letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 6.15 be construed so as to require Buyer to agree to, or accept, economic terms that are materially less favorable to Buyer than the economic terms contained in the Commitment Letter and any related fee letter (assuming the application of the “market flex” provisions). Buyer shall deliver to Seller true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative ~~Financing contemplated by any new debt commitment letter~~Debt Financing. (cd) ~~Prior to~~ From and after the date of this Agreement, and through the earliest of the Closing, the date on which this Agreement is terminated in accordance with Article IX and the completion of the Financing, Seller ~~and ▇▇▇▇▇▇~~ shall, ~~at Purchaser’s cost~~ and ~~expense~~Seller shall cause each of its Subsidiaries and each of its and their representatives to, use its respective reasonable best efforts toto provide all cooperation that is necessary, customary or advisable and ~~to cause its Representatives to, provide to Purchaser such cooperation as is~~ reasonably requested by ~~Purchaser~~ Buyer to assist Buyer in the arrangement of the Debt Financing or any public or private offering of debt securities undertaken in replacement of all or a portion of the Debt Financing (the “Bond Financing” and, together with the Debt Financing, the “Financing”) for the purposes of financing the Purchase Price and any other amounts required to be paid in connection with the consummation of the transactions contemplated hereby and all related fees and expenses of Buyer (it being acknowledged and agreed by Buyer that the receipt of such Financing is not a condition to the Closing), including (A) participating in a reasonable number of meetings, rating agency sessions and drafting sessions, and participating in reasonable and customary due diligence, (B) furnishing Buyer and the financial institutions providing or arranging the Debt Financing and the Bond Financing (~~provided that such requested cooperation does not unreasonably interfere~~ the “Financing Sources”) with the ~~ongoing operations of Seller~~Required Financial Information, ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ (iC) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser Buyer and the Financing Sources in the preparation of (A1) ~~a customary~~ offering ~~document, private placement memorandum and/or bank information memorandum and similar marketing~~ documents for the Debt Financing or and the ~~Alternative Financing, as applicable,~~ Bond Financing and (B2) materials for rating agency presentations, bank confidential information memoranda, business projections, pro forma financial statements and similar documents in connection with the Debt Financing and the Bond Financing, (~~iii~~D) reasonably cooperating with the marketing efforts for any portion of the Debt Financing and the Bond Financing, (E) using its reasonable efforts to cause its independent accountants to provide assistance and cooperation in the Debt Financing and the Bond Financing, including (1) participating in a reasonable number of drafting sessions and accounting due diligence sessions, (2) providing any necessary customary consents to use or file with the SEC their audit reports relating to the Transferred Business and (3) providing any necessary customary “comfort letters,” (F) causing the Transferred Companies to execute and deliver customary definitive financing documents to the extent reasonably requested by Buyer and otherwise facilitating the pledging of collateral reasonably necessary to secure the Debt Financing or the Bond Financing; provided that the effectiveness of any definitive documentation executed by the Transferred Companies shall be subject to the occurrence of the Closing and (G) furnishing ~~Purchaser~~ Buyer and ~~the~~ any Financing Sources promptly, and in any event at least five (5) Business Days prior to the ~~Required Information;~~ Closing Date, with all documentation and ~~(iv) facilitating Purchaser’s preparation of documentation~~ other information required by any Governmental Entity with respect to the ~~pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser~~ Debt Financing and the Bond Financing ~~Sources~~ under applicable “know your customer” and anti-money laundering rules and regulations, including the ~~Required Information in a manner that~~USA PATRIOT Act of 2001, ~~taken~~ as ~~a whole, does not contain any untrue statement of a material fact regarding~~ amended. Nothing herein shall require such cooperation to the ~~Purchased Assets or~~ extent it would (A) unreasonably disrupt the ~~Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light~~ conduct of the ~~circumstances under which such statements are made. (d) Notwithstanding the foregoing~~business or operations of Seller or its Subsidiaries, (iB) ~~none of ▇▇▇▇▇▇,~~ require Seller or any of ~~their respective Affiliates or other Representatives shall be required~~ its Subsidiaries to pay any commitment or other similar ~~fee, provide any security, execute any document, make any representations, provide any indemnification~~ fee or incur any other cost or expense that is not reimbursed by Buyer or ~~Liability~~ otherwise incur any liability or give any indemnities, in connection with the ~~Financing or the cooperation contemplated by this Section 6.13(d)~~Debt Financing; provided, ~~(ii) none of ▇▇▇▇▇▇~~however, that Seller ~~or any of their respective Affiliates or other Representatives~~ shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates responsible for ~~all out-of-pocket~~ such fees, costs and expenses incurred by Seller in connection with preparing and delivering any of ~~them~~ the Financial Statements provided for in Section 6.18, (C) require Seller or any of its Subsidiaries to take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the certificate of incorporation or by-laws or other comparable organizational documents of Seller or any of its Subsidiaries, any applicable Laws or any Contract. In addition, nothing herein shall require Seller or any of its Subsidiaries or any of its Representatives to deliver legal opinions. In furtherance of and without limitation to the second immediately preceding sentence, nothing herein shall require Seller or any of its Subsidiaries to, enter into any agreement (or require their respective boards of directors or equivalent governing bodies to approve any such agreement) in connection with the Financing. Except for the fees, costs and expenses incurred by Seller in connection with preparing and delivering any of the Financial Statements provided for in Section 6.18, Buyer shall promptly, upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket third party costs and expenses (including reasonable attorneys’ ~~fees and other fees and expenses as incurred~~fees) incurred by Seller or any of its Subsidiaries or their respective representatives in connection with the ~~cooperation contemplated by this Section 6.13(d)~~ Financing and shall indemnify and hold harmless ~~▇▇▇▇▇▇~~Seller, ~~Seller~~ its Subsidiaries and their respective ~~Affiliates~~ representatives from and against any and all ~~Liabilities~~ losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution arrangement of the Financing and any information used in connection therewith (other than arising from (x) fraud, intentional misrepresentation, misstatements or ~~execute or deliver any certificate, document, instrument or agreement that is effective prior to~~ omissions on the ~~Closing or agree to any change or modification~~ part of ~~any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser~~ Seller or its Affiliates ~~pursuant to this Section 6.13(d~~or (y) ~~shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability~~ written historical information of the ~~Financing, Alternative Financing~~ type prepared by Seller or ~~any other funds or financing~~ its Subsidiaries in the ordinary course of business that is provided by ~~Purchaser~~ Seller or any of its ~~Affiliates be a condition to any~~ Subsidiaries for purposes of ~~Purchaser’s or Purchaser Parent’s obligations under this Agreement~~the Financing).

Appears in 1 contract

Sources: Stock Purchase Agreement (Frontier Communications Corp)

Financing. (a) ~~Purchaser and Purchaser~~ Parent ~~each~~ shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain ~~and to consummate~~ the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Debt Commitment Letter (~~including the flex provisions related thereto),~~ subject to the immediately succeeding sentence and subject to the terms of any ~~amendments or modifications thereto permitted by Section 6.13(b~~Alternative Financing), including by using its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter, ~~(ii) negotiate~~ negotiating and ~~enter~~ entering into definitive agreements with respect to the Debt Financing on the terms and conditions ~~(including the flex provisions) contained~~ set forth in the Debt Commitment ~~Letter~~Letter or on other terms no less favorable, ~~subject~~ in the aggregate, to ~~any amendments or modifications thereto permitted by Section 6.13(b)~~Parent and the Company, (~~iii~~ii) satisfy on a timely basis all conditions applicable to ~~Purchaser or~~ Parent in such definitive agreements that are within its ~~Affiliates contained~~ control, and (iii) enforce its rights under the Debt Commitment Letter in the ~~Commitment Letter~~event of a material breach thereof by the counterparty thereof, ~~including the payment of any commitment, engagement or placement fees required as a condition to the Financing~~ and ~~due and payable by Purchaser or its Affiliates,~~ (iv) ~~upon the satisfaction or waiver of such conditions,~~ consummate the Debt Financing on at or prior to the ~~Closing Date~~Closing. Parent shall have the right from time to time to amend, ~~including by drawing on~~ replace, supplement or otherwise modify, or waive any ~~interim or bridge financing facilities contemplated thereby~~of its rights under, ~~(v) obtain such third-party consents as may be reasonably required in connection with~~ the ~~Financing, and (vi) comply with its obligations under the~~ Debt Commitment Letter~~. If Purchaser~~ , and/or substitute other debt or ~~Purchaser Parent becomes aware of any event~~ equity financing for all or ~~circumstance that makes procurement of~~ any portion of the Debt Financing ~~reasonably unlikely to occur in the manner or~~ from the ~~sources contemplated in the Commitment Letter~~same and/or alternative financing sources, ~~Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable~~ provided that any such ~~portion from alternative sources on terms and conditions not materially less favorable in~~ amendment, replacement, supplement or other modification to, or waiver of, any provision of the ~~aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the~~ Debt Commitment Letter ~~and~~ that ~~would not have~~ amends the Debt Financing and/or substitution of all or any portion of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Debt Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ~~▇▇▇▇▇▇~~the Company (such consent not to be unreasonably withheld, conditioned or delayed) (iA) ~~permit any termination, amendment or modification~~ add to, or ~~any waiver of any provision or remedy under~~expand upon, the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letter ~~or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing~~in any respect, (B) ~~modifies any existing conditions to the Financing in a manner that affects~~ prevent, impede or delay the consummation of ~~all or any portion of~~ the ~~Financing to below a level that would impair Purchaser’s ability to consummate~~ Merger and the ~~Transactions, (B) reduces the committed amount of the Financing~~other transactions contemplated by this Agreement, (C) adversely ~~affects in any material respect~~ impact the ability of ~~Purchaser~~ Parent to enforce its rights against ~~other parties~~ the counterparty to the Debt Commitment ~~Letter or the definitive agreements in respect thereof~~Letter, or (D) ~~could otherwise reasonably be expected~~ impose additional material obligations on the Company and any of its Subsidiaries. For purposes of this Agreement, references to ~~prevent, impede or delay in any material respect~~ “Debt Financing” shall mean and include the ~~consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity~~ financing ~~that could reasonably be expected to materially impair, delay or prevent consummation of the Financing~~ contemplated by the Debt Commitment Letter as permitted to be amended, modified, replaced, supplemented or ~~any Alternative Financing contemplated~~ substituted by ~~any new debt commitment letter. (c~~this Section 8.3(a) ~~Prior~~ and references to ~~the Closing~~“Debt Commitment Letter” shall include such documents as permitted to be amended, ~~Seller and ▇▇▇▇▇▇ shall~~modified, ~~at Purchaser’s cost and expense~~replaced, ~~use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested~~ supplemented or substituted by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliatesthis Section 8.3(a). ~~Such assistance shall include~~ In the ~~following: (i) assisting~~ event any portion of the Debt Financing becomes unavailable on the terms and conditions set forth in ~~preparation~~ the Debt Commitment Letter for ~~and participation in customary marketing efforts related to the Financing or the Alternative Financing~~any reason, as ~~applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and~~ promptly as practicable following the ~~Financing Sources in the preparation~~ occurrence of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will such event Parent shall use its reasonable best efforts to ~~provide~~ obtain alternative financing from alternative sources (the “Alternative Financing”) as promptly as practicable following the occurrence of such event in an amount sufficient to ~~Purchaser and~~ consummate the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation transactions contemplated by this ~~Section 6.13(d)~~Agreement. For all purposes of and under this Agreement, ~~(ii) none of ▇▇▇▇▇▇, Seller or~~ the term “Debt Financing” shall also mean and include any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them Alternative Financing (including ~~reasonable attorneys’ fees and other fees and expenses~~ any amendment, modification, replacement, supplement or substitution of any such alternative financing as ~~incurred) in connection with the cooperation contemplated~~ permitted by this Section ~~6.13(d)~~ 8.3(a)). Parent shall keep the Company fully and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior promptly apprised as to the ~~Closing or agree to~~ status of, and any ~~change or modification of any existing certificate~~material developments relating to, ~~document, instrument or agreement that is effective prior to~~ the ~~Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04~~Debt Financing. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Pervasive Software Inc)

Financing. (a) ~~Purchaser~~ Each of Buyers, Merger Subs and ~~Purchaser Parent each~~ Buyer Parent, as applicable, shall use ~~its~~ commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as possible, all things necessary, proper or advisable to arrange and obtain the Financing on the terms and subject solely to ~~consummate~~ the conditions described in the Equity Commitment Letters and the Debt Commitment Letters, as applicable, or such other terms and conditions as are materially no less favorable, in the aggregate, to Buyers, Merger Subs and Buyer Parent, as applicable, than those set forth in the Equity Commitment Letters and the Debt Commitment Letters (provided, that the Debt Commitment Letters may be amended, supplemented, modified and replaced as permitted herein, including, in the case of the Senior Debt Commitment Letter, by virtue of the “flex” provisions contained in any related fee letter) including (i) maintaining in effect (and not cancelling any commitments under) the Commitment Letters, (ii) paying all commitment or other fees and amounts that become due and payable under or with respect to the Debt Commitment Letters or the Debt Fee Letters (provided, that the Debt Commitment Letters may be amended, supplemented, modified and replaced as permitted herein, including, by virtue of the “flex” provisions contained in any related fee letter) as they become due and payable, (iii) negotiating and entering into definitive financing agreements with respect to the Financing no less favorable to Buyers, Merger Subs and Buyer Parent, as applicable, than those contemplated by (including, with respect to the Senior Debt Commitment Letter, any “market flex” provisions related thereto) or, in the Buyers’, Merger Subs’ or Buyer Parent’s, as applicable, sole discretion, on other terms that are no less favorable to Buyers, Merger Subs and Buyer Parent, as applicable, than the terms contained in the Debt Commitment Letters so long as such other terms would not constitute a Prohibited Financing Amendment, and subject to only those conditions described in, the Commitment Letters (subject to Buyers’, Merger Subs’ or Buyer Parent’s, as applicable, right to amend, modify, supplement, restate, assign, substitute or replace the applicable Debt Commitment Letter in accordance with this Agreement) so that such agreements are in effect not later than at the Closing (such definitive financing agreements entered into in respect of the Debt Financing, the “Debt Financing Agreements”, and together with such definitive financing agreements entered into in respect of the Financing, the “Financing Agreements”) and (iv) arranging and obtaining the proceeds of the Financing (~~or any Alternative~~ including by issuing the debt contemplated by the Junior Debt Financing) at or before Closing on the terms and conditions described in the Commitment ~~Letter~~ Letters (~~including the flex provisions related thereto)~~including, subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the ~~Financing~~ Senior Debt Commitment Letters, any “market flex” provisions related thereto) or, in the Buyers’, Merger Subs’ or Buyer Parent’s, as applicable, sole discretion, on other terms that are no less favorable to the Buyers, Merger Subs and Buyer Parent, as applicable, than the terms ~~and conditions (including the flex provisions)~~ contained in the Debt Commitment ~~Letter~~Letters so long as such other terms would not constitute a Prohibited Financing Amendment. Buyers, ~~subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained~~ Merger Subs and Buyer Parent shall keep Seller Parent informed in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion reasonable detail of the ~~Financing reasonably unlikely to occur~~ status in ~~the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify~~ respect of B▇▇▇▇▇▇ ’, Merger Subs’ and ~~Seller and shall use its reasonable best~~ Buyer Parent’s, as applicable, efforts to ~~arrange~~ obtain the Financing following written request of Seller Parent therefor. (b) Buyers, Merger Subs and Buyer Parent, as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financingapplicable, ~~the “Alternative Financing”). Purchaser~~ shall ~~(A)~~ give ~~▇▇▇▇▇▇ and~~ Seller Parent prompt ~~oral and~~ written notice (i) of ~~(1)~~ any breach or default ~~by Purchaser~~ (or ~~its Affiliates~~ any event or circumstance that, with or without notice or lapse of ~~the Commitment Letter~~time or both, ~~Alternative Financing or definitive financing agreements related thereto, (2) any known~~ would reasonably be expected to result in a breach or ~~default~~ default) by any party to the Equity Commitment Letters or the Debt Commitment Letters of which Buyers, Merger Subs or Buyer Parent, as applicable, become aware, (ii) if and when Buyers, Merger Subs or Buyer Parent, as applicable, become aware that any portion of the Equity Financing that would reduce the aggregate amount of proceeds available to the Buyers from the Equity Financing below the amount, taking into account all other ~~than Purchaser or its Affiliates~~sources of proceeds, necessary to fund the Required Funding Amount, (iii) of the ~~Commitment Letter~~receipt of any notice or other communication from any Person with respect to any (A) actual or potential breach, ~~Alternative Financing or definitive financing agreements related thereto~~default, ~~(3) any purported~~ termination or repudiation by any party of to the Equity Commitment ~~Letter, Alternative Financing~~ Letters or ~~definitive financing agreements related thereto~~ the Debt Commitment Letters or (4B) ~~the receipt of notice of any~~ material dispute or disagreement between or among ~~the~~ any parties to the Equity Commitment Letters or the Debt Commitment Letters (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing), (iv) of any termination of any of the Equity Commitment Letters or the Debt Commitment Letters (in each case of the foregoing clauses (i) through (iv), other than information to the extent that the provision thereof would violate or waive any attorney-client or other privilege, constitute attorney work product or violate or contravene any law, rule or regulation, or any obligation of confidentiality) provided, that for the avoidance of doubt no consent from Seller Parent shall be required for: (A) any amendment, replacement, supplement or modification of the Debt Commitment Letters that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letters as of the date of this Agreement (including in replacement of a Lender) or (B) implementation or exercise of any “flex” provisions that do not impact the amount (other than through the operation of additional original issue discount or upfront fees) or adversely affect the availability of the Debt Financing on the Closing Date or expand the conditions to obtaining the Debt Financing on the Closing Date. If any portion of the Debt Financing becomes unavailable for any reason, other than a breach of the Junior Debt Financing Cooperation by Seller Parent or any of its Affiliates, and such portion would reduce the aggregate amount of proceeds available to the Buyers, Merger Subs or Buyer Parent, as applicable, from the Debt Financing, Buyers, Merger Subs or Buyer Parent, as applicable, shall, without limiting the obligations of Buyers, Merger Subs or Buyer Parent, as applicable, set forth in the immediately following sentence, use commercially reasonable efforts to arrange and obtain alternative financing and incur alternative financing, which shall be provided by the Debt Financing Parties or by alternative sources, and which shall be in an amount that is not less than the amount contemplated by the Debt Commitment Letters as of the date hereof and which shall be on terms no less favorable to Buyers, Merger Subs or Buyer Parent, as applicable, than those contemplated by the terms and conditions contained therein, or in the of Buyers’, Merger Subs’ or Buyer Parent’s, as applicable, sole discretion, on other terms than those in the applicable Debt Commitment Letter, in each case, which such other terms shall not constitute a Prohibited Financing Amendment, other than any Prohibited Financing Amendment to which Seller Parent has given its advance written consent (“Alternative Financing”), as promptly as practicable following the occurrence of such event, and the provisions of this Section 6.17 and Section 9.16 shall be applicable to the Alternative Financing, and, for the purposes of Section 4.06, this Section 6.17, Section 6.18 and the Lender Protective Provisions, all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letters, the Debt Financing, the Financing, the Debt Financing Agreements and the Financing Agreements shall include the applicable documents for the Alternative Financing and all references to the Debt Financing Parties shall include the persons providing or ~~definitive~~ arranging the Alternative Financing. Buyers shall deliver to Seller Parent true, correct and complete copies of all Contracts or other arrangements pursuant to which any financing ~~agreements related thereto~~source shall have committed to provide any portion of the Alternative Financing; provided, ~~and~~ that, the copy of a fee letter in connection with the Senior Debt Commitment Letter so required to be delivered may be redacted to omit fee amounts, economic terms, any provisions relating to “flex” provisions that do not impact the amount (other than through the operation of additional original issue discount or upfront fees) or adversely affect the availability of the Debt Financing on the Closing Date or expand the conditions to obtaining the Debt Financing on the Closing Date. Buyer shall (A) comply in all material respects with the Commitment Letters, (B) ~~upon request~~enforce in all material respects their rights under the Commitment Letters (provided, ~~otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding~~ that, notwithstanding anything to the contrary in this Agreement, ~~Purchaser~~ Buyers, Merger Subs and ~~Purchaser Parent~~ Buyer Parent, as applicable, shall ~~not~~not be required to initiate, prosecute or maintain any claim, action, demand, grievance, arbitration or similar Proceeding against any Person) and (C) not permit, without the prior written consent of ~~▇▇▇▇▇▇~~Seller Parent, ~~(i) permit~~ any ~~termination,~~ amendment or modification to be made to, or any waiver of any provision or remedy under, ~~the~~ any Commitment Letter ~~or Fee Letters~~ if such ~~termination,~~ amendment, ~~modification~~modification or waiver would (1) reduce the aggregate amount of proceeds from (i) the Debt Financing below the amount contemplated by the Debt Commitment Letters as of the date hereof or (ii) the Equity Financing below, ~~waiver~~ after taking into account all other sources of proceeds, the amount necessary to fund the Required Funding Amount, as applicable, (2) impose new or ~~remedy (A) adds new~~ additional, or otherwise adversely modify any, conditions precedent to the ~~Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion~~ receipt of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D3) ~~could~~ otherwise reasonably be expected to ~~prevent, impede~~ prevent or materially impair or delay the ability of Buyers, Merger Subs and Buyer Parent, as applicable, to consummate the Transaction on the Closing Date (the limitations set forth in clauses (1) through (3), the “Prohibited Financing Amendments”), unless Seller Parent has given its advance written consent. Buyers, Merger Subs and Buyer Parent, as applicable, shall promptly deliver to Seller Parent true, complete and correct copies of any material ~~respect~~ amendment, restatement, amendment and restatement, replacement, supplement, modification, waiver of consent to any Commitment Letter (subject to any redaction of a fee letter consistent with the ~~consummation~~ redaction of any Debt Fee Letter provided on the date hereof). Notwithstanding anything contained in this Section 6.17 or anything else in this Agreement, in no event shall the commercially reasonable efforts of Buyers, Merger Subs or Buyer Parent, as applicable, be deemed or construed to require Buyers, Merger Subs or Buyer Parent, as applicable, to, and Buyers, Merger Subs or Buyer Parent, as applicable, shall not be required to, (i) pay any fees in excess of those contemplated by the Debt Financing as of the ~~Closing~~ date hereof, (ii) agree to conditionality or economic terms of the ~~Transactions~~Debt Financing that are less favorable than those contemplated by the Debt Commitment Letters or Debt Fee Letters (including any flex provisions therein) as of the date hereof, or (iiiii) ~~undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or~~ seek equity financing ~~that could reasonably be expected~~ from any source other than those counterparties to ~~materially impair, delay or prevent consummation of~~ the ~~Financing contemplated by the~~ Equity Commitment ~~Letter or any Alternative Financing contemplated by any new debt commitment letter~~Letters. (c) ~~Prior~~ Without limiting Section 9.16(b), each of Buyers, Merger Subs and Buyer Parent acknowledges and agrees that the obtaining of the Financing, or any Alternative Financing, is not a condition to the ~~Closing, Seller~~ Closing and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and reaffirm their respective ~~Affiliates). Such assistance shall include~~ obligations to consummate the ~~following: (i) assisting in preparation for~~ transactions contemplated by this Agreement irrespective and ~~participation in customary marketing efforts related to~~ independently of the availability of the Financing or ~~the~~ any Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing subject to fulfillment or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light waiver of the ~~circumstances under which such statements are made~~conditions set forth in Section 7.01 and Section 7.02. (d) ~~Notwithstanding the foregoing~~The provisions of this Section 6.17 shall apply to each Merger Sub, mutatis mutandis. Each of Buyer Parent and Buyers shall take all actions necessary to (i) ~~none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required~~ cause each Merger Sub to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by perform promptly its obligations under this ~~Section 6.13(d),~~ Agreement and (ii) ~~none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required~~ cause (A) US Merger Sub to ~~provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would~~consummate the Merger and (B) CA AmalCo Sub to consummate the Amalgamation, in each case, on the ~~reasonable opinion of ▇▇▇▇▇▇ or Seller, result~~ terms and conditions set forth in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Equity Purchase Agreement (GFL Environmental Inc.)

Financing. (a1) The Purchaser ~~and Purchaser Parent each~~ 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~~ necessary to arrange and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ described in the Financing Letters on the terms and conditions ~~described in the Commitment Letter~~ (including the flex ~~provisions related thereto~~provisions) described therein and shall not, without the consent of the Company, permit any amendment or modification to be made to, or any waiver of any provision or remedy under the Financing Letters, that imposes new or additional conditions, in each case that, would reasonably be 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 Financing (except as set forth in any “flex” terms) unless the Equity Financing is increased by a corresponding amount or from alternative financing to the extent required or permitted pursuant to this Section 4.6), ~~subject~~ (II) prevent or materially delay the availability of the Financing or (III) make the funding of the Debt Financing (or satisfaction of the conditions to ~~any amendments~~ obtaining the Debt Financing) materially less likely to occur (it being understood and agreed that the Purchaser may amend the Debt Commitment Letter to add lenders, arrangers, bookrunners, agents, managers or ~~modifications thereto permitted by Section 6.13(b~~similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement). Without limiting the foregoing, ~~including using~~ the Purchaser shall use its reasonable best efforts to (i) to maintain in effect the ~~Commitment Letter~~Financing Letters until the consummation of the transactions contemplated hereby, (ii) to negotiate and enter into definitive agreements with respect to the ~~Financing~~ Debt Commitment Letter on the terms and conditions (including the flex provisions) contained in the Debt Commitment Letter (or on terms no less favorable to the Purchaser than the terms and conditions (including flex provisions) in the Debt Commitment Letter) and, ~~subject~~ for greater certainty, such terms shall not include conditions in favour of the Financing Source Parties in addition to ~~any amendments or modifications thereto permitted by Section 6.13(b)~~those in the Debt Commitment Letter, (iii) to satisfy (or obtain waivers to) on a timely basis (taking into account the expected timing of the Marketing Period) all conditions applicable to the Purchaser ~~or its Affiliates contained~~ to funding in the Debt Commitment ~~Letter, including~~ Letter at the ~~payment of any commitment, engagement~~ Closing that are within its control and in the Equity Commitment Letter and to consummate the Financing at or ~~placement fees required as a condition~~ prior to the ~~Financing~~ Closing and ~~due and payable by Purchaser or its Affiliates,~~ (iv) ~~upon~~ subject to the satisfaction or waiver of ~~such conditions, consummate~~ the conditions set forth in the Financing ~~on or prior~~ Letters (other than the condition in Section 6 of Schedule D to the Debt Commitment Letter to make the Equity Contribution (as defined in the Debt Commitment Letter) and the conditions that, by their terms, cannot be satisfied until the Effective Date), at the time when the Closing ~~Date~~would have occurred but for the failure of the Financing to be funded, to seek to enforce its rights under the Financing Letters, including ~~by drawing on any interim~~ using its reasonable best efforts to cause the lenders and the other Persons committed to fund the Financing to fund the Financing (or ~~bridge financing facilities contemplated thereby, (v) obtain~~ such ~~third-party consents~~ lesser amount as may be ~~reasonably~~ required to consummate the transactions contemplated hereby) at the Closing. Without limiting the generality of the foregoing, the Purchaser shall give the Company prompt notice (x) of any breach or default by any party to any of the Financing Letters and any definitive agreements with respect thereto of which the Purchaser becomes aware, (y) of the receipt of (A) any written notice or (B) other written communication, in ~~connection~~ each case from any Financing Source Party in the case of the Debt Commitment Letter or any of JLL Holdco, JLL Partners Fund VI, L.P., JLL Partners Fund V, L.P. and JLL Associates V (Patheon), L.P. in the case of the Equity Commitment Letter, with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any of the Financing Letters and any definitive agreements with respect thereto or any material provisions of the Financing Letters and any definitive agreements with respect thereto or (2) dispute or disagreement between or among any parties to any of the Financing Letters with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, in each case which would make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) materially less likely to occur; provided, ~~and~~ that in no event will the Purchaser be under any obligation to disclose any information that is subject to any applicable legal privileges (~~vi) comply with its obligations under~~ including the ~~Commitment Letter~~attorney-client privilege)). ~~If Purchaser or Purchaser Parent becomes aware~~ Upon the occurrence of any ~~event~~ circumstance referred to in clause (x) or ~~circumstance that makes procurement~~ (y)(A) of the immediately preceding sentence which would make any portion of the Debt Financing unavailable, and such portion is reasonably ~~unlikely~~ required to ~~occur~~ fund the aggregate Share Consideration and all fees, expenses and other amounts contemplated to be paid by the Purchaser pursuant to this Agreement, the Purchaser shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement on terms and conditions not less favorable, and with financing sources reasonably acceptable, to the Purchaser than the terms set forth in the ~~manner~~ Debt Commitment Letter as promptly as reasonably practicable following the occurrence of such event. Notwithstanding anything to the contrary contained herein, in no event shall the Purchaser be required pursuant to this Agreement to agree to pay to the lenders providing the Debt Financing any additional fees or ~~from~~ to increase any interest rates applicable to the ~~sources contemplated~~ Debt Financing, except as expressly required pursuant to the Debt Commitment Letter in existence as of the ~~Commitment Letter,~~ date hereof or in any fee letter referenced therein (including any market flex terms thereof) or related thereto and the Purchaser shall not be required to consummate the Debt Financing until the final day of the Marketing Period. The Purchaser shall furnish the Company with complete, correct and executed copies of the Debt Commitment Letter or any alternative financing agreement promptly upon their execution, and upon request will provide the Company with drafts of the Offering Documents (which drafts may omit any Description of Notes to be included therein) and ~~in any event within two~~ the Required DPP Information forthwith following the receipt thereof by the Purchaser. (2) ~~Business Days) notify ▇▇▇▇▇▇~~ Prior to the Closing, the Company shall use its reasonable best efforts to provide to the Purchaser, and ~~Seller~~ shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use its reasonable best efforts to ~~arrange~~ cause its Representatives, including legal and accounting, to provide, all cooperation reasonably requested by the Purchaser in connection with arranging, obtaining and syndicating the Financing and to assist Purchaser in causing the conditions in the Financing Letters to be satisfied (provided that such request is made on reasonable notice), including (i) assisting with the preparation of Offering Documents and, upon receipt of the Required DPP Information, preparing the pro forma financial statements referred to in paragraphs 9 and 12 of Exhibit D of the Debt Commitment Letter, including, for the avoidance of doubt, the pro forma consolidated balance sheet and pro forma consolidated statements of income of the Parent Borrower (as defined in the Debt Commitment Letter) required under paragraph 9 thereof, (ii) preparing and furnishing to the Purchaser and the Financing Source Parties as promptly as practicable ~~any such portion from alternative sources on terms and conditions not materially less favorable in~~ all Required Company Information relating to the ~~aggregate to Purchaser~~ Company and its ~~Affiliates than~~ Subsidiaries as may be reasonably requested by the ~~terms and conditions set forth~~ Purchaser to assist in ~~the Commitment Letter and that would not have any~~ preparation of the ~~effects prohibited pursuant to amendment by Section 6.13(b) (such financing~~Offering Documents, ~~the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇~~ and ~~Seller prompt oral and written notice of (1)~~ any ~~breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related~~ supplements thereto, (2iii) ~~any known breach or default by any party (other than Purchaser or its Affiliates)~~ having the Company designate members of senior management, with appropriate seniority and expertise, of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties Company to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing participate in a ~~manner that affects the consummation~~ reasonable number of ~~all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions~~presentations, ~~(B) reduces the committed amount of the Financing~~road shows, ~~(C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof~~due diligence sessions, ~~or (D) could otherwise reasonably be expected to prevent~~drafting sessions, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller customary meetings and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser sessions with ratings agencies in connection with the Financing ~~(provided that such requested cooperation does not unreasonably interfere~~ and reasonably cooperating with the ~~ongoing operations~~ marketing efforts, including direct contact between such senior management of ~~Seller~~the Company and its Subsidiaries and Financing Source Parties and potential lenders and investors in the Financing, ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ (iiv) assisting the Purchaser in ~~preparation for~~ obtaining any corporate credit and ~~participation in customary marketing efforts related to~~ family ratings from any ratings agencies contemplated by the ~~Financing or~~ Debt Commitment Letter, including assisting the ~~Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting~~ Purchaser and the Financing ~~Sources~~ Source Parties in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (~~iii~~v) ~~furnishing Purchaser~~ obtaining customary accountant’s comfort letters (including customary negative assurances) and consents from the Company’s independent auditors for a U.S. offering of debt securities, which such auditors are prepared to issue at the time of pricing of such debt securities and the closing thereof upon completion of customary procedures, (vi) assisting in the preparation of, and, subject to the occurrence of the Closing, executing and delivering, definitive financing documents, including guarantee and collateral documents and other certificates and documents on terms and condition consistent with the Debt Commitment Letter as may be reasonably requested by the Purchaser, (vii) subject to any contractual agreement in effect as of the date hereof (except to the extent any pledge prohibition in such contractual agreement is unenforceable after giving effect to the applicable provisions of Article 9 of the Uniform Commercial Code of New York), facilitating the pledging of collateral for the Financing ~~Sources~~ (including the ~~Required Information; and (iv) facilitating Purchaser’s preparation~~ delivery of ~~documentation~~ original share certificates, together with share powers executed in blank, with respect to the ~~pledging~~ Company and each of ~~collateral~~its Subsidiaries), ~~if applicable. In addition~~including taking reasonable actions necessary to permit the Financing Source Parties to evaluate the Company’s and its Subsidiaries’ assets for the purpose of establishing collateral arrangements (including cooperation in connection with the payoff of existing Financial Indebtedness and the release of related Liens), ~~Seller~~ (viii) assisting the Financing Source Parties in benefiting from the existing lending relationships of the Company and its Subsidiaries, (ix) cooperating with the Purchaser to the extent within the control of the Company and its Subsidiaries, and taking all organizational actions, subject to the occurrence of the Effective Date, reasonably requested by the Purchaser to permit the consummation of the Financing, (x) executing and delivering any certificate and documents as may be reasonably requested by Purchaser (including a certificate of the chief financial officer of the Company (who is or will ~~use its reasonable best efforts~~ be such officer as of the Effective Time (with respect to ~~provide~~ solvency matters in the form set forth in Annex I to Exhibit D of the Debt Commitment Letter as of the Closing, on a pro forma basis); (xi) obtaining surveys, to the extent available, and obtain title insurance at the expense of and as reasonably requested by the Purchaser on behalf of the Financing Source Parties; (xii) subject to Section 4.5(1), taking all actions reasonably requested by the Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to ~~make~~ (A) permit the ~~statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading~~ prospective lenders involved in the ~~light~~ Debt Financing to evaluate the Company’s inventory, current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements (including conducting the ~~circumstances under which such statements are made.~~ commercial finance examination and inventory, equipment and real property appraisals as may be contemplated by the Debt Commitment Letter within the time frame described therein) and (dB) ~~Notwithstanding~~ establish bank and other accounts and blocked account and control agreements in connection with the foregoing, (ixiii) cooperating with the Financing Source Parties’ requests for due diligence to the extent customary and reasonable, (xiv) obtaining customary authorization letters with respect to the bank information memoranda from a senior officer of the Company and requesting consents of accountants for use of their reports in any materials reasonably relating to the Debt Financing, and (xv) at least four Business Days prior to the Effective Date, providing all documentation and other information about the Company and each of its Subsidiaries as is reasonably requested in writing by the Purchaser at least eight Business Days prior to the Effective Date in connection with the Debt Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act; provided, however, in each case, that (A) neither the Company nor any of its Subsidiaries shall be required to commit to take any action that is not contingent upon the Closing (including the entry into any agreement) or that would be effective prior to the Effective Date, (B) none of ~~▇▇▇▇▇▇, Seller~~ the Company or any of ~~their respective Affiliates or other Representatives~~ its Subsidiaries shall be required to take any action that would subject it to any cost or expense or to pay any commitment or other similar ~~fee, provide any security, execute any document,~~ fee or make any ~~representations, provide any indemnification~~ other payment (other than to the extent the Purchaser agrees to promptly reimburse such amounts) or incur any other ~~expense~~ liability or ~~Liability~~ provide or agree to provide any indemnity in connection with the Financing that is not subject to the occurrence of the Effective Date, (C) none of the boards of directors (or equivalent bodies) of the Company or any of its Subsidiaries shall be required to enter into any resolutions or take similar action approving the Financing (except that concurrently with the Closing, the boards (or their equivalent bodies) of the Company and Subsidiaries of the Company may sign resolutions or take similar actions that do not become effective until the Effective Date), and (D) the Company shall not be required to take any action or do anything that would contravene any Law, contravene any material Contract of the Company or any Subsidiary or be reasonably likely to prevent or materially delay the satisfaction of any condition set forth in Article 6 of this Agreement. The Company hereby consents to the use of the Company’s logos in connection with the Financing in a form and manner mutually agreed with the Company; provided, however, that such logos are used solely in a manner that is not intended, or reasonably likely, to harm or disparage the Company or any of its Subsidiaries or the ~~cooperation contemplated by this Section 6.13(d)~~reputation or goodwill of the Company or any of its Subsidiaries. The Company and its Subsidiaries shall use their reasonable best efforts to periodically update any Required Company Information provided to Purchaser as may be reasonably necessary so that such Required Company Information (i) meets the condition set forth in the first proviso in the definition of “Marketing Period”, (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, meets the applicable requirements set forth in the ~~reasonable opinion~~ definition of ~~▇▇▇▇▇▇ or Seller~~“Required Company Information”, and (iii) would not, after giving effect to such update(s), result in ~~a violation of Law or loss of attorney-client privilege~~the Marketing Period to cease to be deemed to have commenced. The Purchaser agrees to indemnify the Company, ~~(iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller~~ its Subsidiaries and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates Representatives from and against any and all ~~Liabilities~~ liabilities, losses, damages, claims, costs, expenses, interest, awards, judgements and penalties collectively, “Losses”) suffered or incurred by any of them in connection with ~~the~~ any Financing or potential Financing by the ~~cooperation contemplated by this Section 6.13(d) and~~ Purchaser (~~iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or~~ other than with respect to any ~~Persons who are directors~~ Losses arising out of any of information provided by the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior Company and relating to the ~~Closing~~ Company and its Subsidiaries or ~~agree to~~ resulting from any ~~change~~ fraud, gross negligence or ~~modification of any existing certificate~~willful misconduct by the Company). (3) In addition, ~~document, instrument or agreement that is effective~~ prior to the Closing~~. Any information provided~~ , the Company shall use its reasonable best efforts to, and shall cause its Subsidiaries to ~~Purchaser~~ use their reasonable best efforts to, negotiate a payoff letter from the agent under the Existing Credit Agreement (as defined in the Debt Commitment Letter), in the agent’s customary form, and which payoff letter shall (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or similar obligations related to the Existing Credit Agreement as of the Effective Date (the “Debt Payoff Amount”),and (ii) state that all Liens in connection therewith relating to the assets of the Company or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.S

Appears in 1 contract

Sources: Arrangement Agreement (Patheon Inc)

Financing. (a) ~~Purchaser~~ (i) Subject to the terms and ~~Purchaser~~ conditions of this Agreement, each of Parent ~~each~~ and Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to~~ obtain and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) ~~contained~~ described in the ~~Commitment Letter~~Financing Letters, ~~subject to any amendments or modifications thereto permitted~~ and the contribution contemplated by ~~Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in~~ the ~~Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition~~ Rollover Letter pursuant to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financingterms thereof, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any ~~termination,~~ amendment or modification to be made to, or any waiver of any provision ~~or remedy~~ under, the ~~Commitment~~ Financing Letters or the Rollover Letter ~~or Fee Letters~~ if such ~~termination,~~ amendment, ~~modification,~~ modification or waiver ~~or remedy~~ (A) ~~adds new conditions~~ with respect to the ~~Financing~~Financing Letters, reduces (or could have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount and (y) after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 4.7 shall be true and correct) or, with respect to the Rollover Letter, reduces the amount of Company Common Stock to be contributed thereby unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount and (y) after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 4.7 shall be true and correct as of the time of such transaction or (B) imposes new or additional conditions or otherwise expands, amends or modifies any ~~existing~~ of the conditions to the Financing or the contribution contemplated by the Rollover Letter, or otherwise expands, amends or modifies any other provision of the Financing Letters or the Rollover Letter, in a manner that ~~affects~~ would reasonably be expected to (x) delay or prevent or make less likely the ~~consummation of all or any portion~~ funding of the Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ or the ~~Transactions,~~ contribution contemplated by the Rollover Letter (~~B) reduces the committed amount~~ or satisfaction of the ~~Financing,~~ conditions to the Financing or the contribution contemplated by the Rollover Letter) on the Closing Date or (Cy) adversely ~~affects in any material respect~~ impact the ability of ~~Purchaser~~ Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the ~~Commitment Letter~~ Financing Letters or the definitive agreements with respect thereto or the Rollover Letter, in ~~respect thereof, or~~ each of clauses (Dx) ~~could otherwise reasonably be expected to prevent, impede or delay~~ and (y) in any material respect (provided that, subject to compliance with the ~~consummation~~ other provisions of this Section 5.5(a), Parent and Merger Sub may amend the ~~Closing~~ Debt Commitment Letter to add additional lenders, arrangers, bookrunners and agents). Parent shall promptly deliver to the Company copies of any such amendment, modification or replacement. For purposes of this Section 5.5, references to “Financing” shall include the ~~Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity~~ financing ~~that could reasonably be expected to materially impair, delay or prevent consummation of the Financing~~ contemplated by the ~~Commitment Letter~~ Financing Letters as permitted to be amended, modified or ~~any Alternative Financing contemplated~~ replaced by ~~any new debt commitment letter. (c) Prior~~ this Section 5.5(a), references to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance “Rollover Investment” shall include the ~~following: (i) assisting in preparation for and participation in customary marketing efforts related~~ financing contemplated by the Rollover Letter as permitted to ~~the Financing~~ be amended, modified or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated replaced by this Section ~~6.13(d)~~5.5(a) and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, ~~(ii) none of ▇▇▇▇▇▇, Seller~~ modified or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated replaced by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.045.5(a). (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (J Crew Group Inc)

Financing. The Financing (~~a) Purchaser~~ as defined in Section 12—"Sources and ~~Purchaser Parent each shall~~ Amount of Funds"), or any alternative financing, is not a condition to the Merger. The Merger Agreement provides that the Offeror will use ~~its~~ commercially reasonable ~~best~~ efforts to ~~take, or cause to be taken,~~ take all actions and to ~~do, or cause to be done,~~ do all things ~~necessary, proper or advisable~~ necessary to obtain and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions described in the Debt Commitment Letters and the Equity Commitment Letter (the "Financing Letters"), including using commercially reasonable efforts to (a) negotiate definitive agreements, (b) satisfy or cause the ~~flex provisions)~~ satisfaction of all conditions applicable to the Offeror and its affiliates in the Financing Letters and the definitive agreements for the Financing or, seek the waiver of conditions applicable to the Offeror and its affiliates contained in such Financing Letters or such definitive agreements for the ~~Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Financing, (~~iii~~c) maintain in full force and effect the Financing Letters in accordance with the terms thereof, (d) satisfy on a timely basis all conditions ~~applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition~~ to the Financing ~~and due and payable by Purchaser~~ Letters that are in the Offeror's or its ~~Affiliates~~applicable indirect subsidiaries' control, (ive) ~~upon~~ in the ~~satisfaction~~ event that all conditions in the Financing Letters have been satisfied or ~~waiver of such conditions~~waived, consummate the Financing ~~on or prior~~ as of the Offer Closing as required to occur pursuant to the ~~Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby~~terms of the Merger Agreement, (vf) ~~obtain~~ enforce its rights under the Financing Letters in the event of any breach thereof and (g) otherwise comply with Parent's, the Offeror's and any applicable indirect subsidiaries' covenants and other obligations under the Financing Letters. Parent, the Offeror and the guarantors under the Limited Guarantee shall not, without the prior written consent of Smart & Final, agree to or permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Financing Letters or the definitive agreements relating to the Financing if such ~~third-party consents as may~~ termination, amendment, supplement, modification or waiver would (a) reduce the aggregate amount of the Financing such that the aggregate amount of the Financing would be ~~reasonably~~ below the amount sufficient to pay the amounts required to be paid in connection with the ~~Financing~~Transactions, including related fees and expenses (vithe "Required Amount"), (b) ~~comply with its obligations under~~ impose new or additional conditions precedent to the Financing or otherwise expand or modify any of the conditions precedent to the Financing from those set forth in the Debt Commitment ~~Letter. If Purchaser~~ Letters, in each case in a manner that would reasonably be expected to delay or ~~Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion~~ prevent the funding of the Financing (or satisfaction of the conditions to the Financing), (c) be reasonably ~~unlikely~~ expected to ~~occur in~~ prevent, impede or delay the ~~manner~~ availability of the Financing, (d) agree to any early termination of any Financing Letter (unless previously or ~~from~~ simultaneously replaced with alternative financing to the ~~sources contemplated in~~ extent necessary to fund the ~~Commitment Letter~~Required Amount), ~~Purchaser shall~~ or (e) adversely impact the ability of Parent, the Offeror or their applicable indirect subsidiaries, as applicable, to enforce its rights against other parties to the Financing Letters. Parent has agreed to promptly deliver to Smart & Final copies of any amendment, modification, supplement, replacement or waiver under any Debt Financing. Upon request by Smart & Final, the Offeror will keep Smart & Final reasonably informed on a timely basis (and in any event within two business days of the date Smart & Final delivers to the Offeror a request) and in reasonable detail of the status of its efforts to obtain the Debt Financing and provide to Smart & Final certain drafts and thereafter executed copies of the material definitive documents for the Debt Financing. The Offeror shall give Smart & Final prompt notice, if at any time prior to the Effective Time, (2a) ~~Business Days~~of the Offeror obtaining knowledge of any termination or expiration of any commitments under the Financing, (b) ~~notify ▇▇▇▇▇▇~~ of the Offeror obtaining knowledge of any material breach or default by any party to any of the Financing Letters or definitive documents related to the Financing, (c) of the receipt by the Offeror of any written notice or other written communication from any Financing source with respect to any (i) breach, default, termination, cancellation or repudiation by any party to any of the Financing Letters or any definitive document related to the Financing of any provisions of the Financing Letters or any definitive document related to the Financing or (ii) material dispute or disagreement between Parent and ~~Seller~~ any Financing source or among any parties to any of the Financing Letters or any definitive document related to the Financing, in each case regarding the Financing, (d) if any Financing source refuses to provide or expresses in writing an intent to refuse to provide all or any portion of the Financing necessary to fund the Required Amount on the terms and in the manner contemplated by the Financing Letters and (e) if the Offeror no longer believes in good faith that it will be able to obtain the Financing necessary to fund the Required Amount on the terms contemplated by the Financing Letters. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including any applicable market "flex" provisions) contemplated by the Debt Commitment Letters, the Offeror shall use ~~its~~ commercially reasonable ~~best~~ efforts to arrange and obtain, as promptly as ~~practicable any such portion~~ practicable, in replacement thereof alternative financing from alternative sources on in an amount, together with the amount of the Financing that remains available, sufficient to fund the Required Amount with terms and conditions (including market "flex" provisions) not ~~materially~~ less favorable ~~in the aggregate~~ to ~~Purchaser and~~ Parent (or its ~~Affiliates~~ Affiliates) than the terms and conditions set forth in the Debt Commitment ~~Letter~~ Letters. The Offeror shall deliver to Smart & Final true and ~~that would not have any~~ complete copies of the ~~effects prohibited~~ alternative debt commitment letters (including redacted fee letters) pursuant to ~~amendment by Section 6.13(b) (~~which any such ~~financing, the “Alternative Financing”). Purchaser~~ alternative source shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties have committed to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or provide any portion of the ~~Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the~~ Debt Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) . Prior to the ~~Closing~~Closing Date, ~~Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense,~~ Smart & Final shall use its commercially reasonable ~~best~~ efforts toto provide, and to cause its ~~Representatives to~~subsidiaries to use commercially reasonable efforts to provide, ~~provide~~ to ~~Purchaser such~~ Parent and its applicable indirect subsidiaries all cooperation ~~as is~~ reasonably requested by ~~Purchaser~~ Parent and its applicable indirect subsidiaries in connection with the arrangement of the Debt Financing, including using its commercially reasonable efforts to: (a) provide, within the required time periods, Parent, its applicable subsidiaries and the Debt Financing ~~(provided that such requested cooperation does not unreasonably interfere~~ sources with the ~~ongoing operations~~ unaudited consolidated balance sheet and related unaudited statements of ~~Seller~~income and cash flow of Smart & Final as of the end of each applicable quarter, ~~▇▇▇▇▇▇~~ as well as the audited consolidated balance sheet of Smart & Final as of the end of such fiscal year and ~~their respective Affiliates~~the related audited statements of income and cash flows ("Required Financial Information")~~. Such assistance shall include~~ ; (b) assist with the ~~following:~~ preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the syndication of the Debt Financing; (ic) ~~assisting~~ inform Parent if Smart & Final or its subsidiaries will have actual knowledge of any facts that would be reasonably likely to require the restatement of any financial statements comprising a portion of or that includes the Required Financial Information to comply with GAAP; (d) assist in preparation for and ~~participation~~ participate in ~~customary marketing efforts related to~~ a reasonable number of investor and lender meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing or and assist Parent in obtaining ratings in connection with the ~~Alternative~~ Debt Financing~~, as applicable~~ ; (e) assist Parent with ~~prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in~~ the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, bank information memoranda and similar marketing documents required in connection with the Debt Financing, including the execution and delivery of customary representation letters in connection with bank information memoranda; (~~iii~~f) ~~furnishing Purchaser~~ cause its independent auditors to provide, consistent with customary practice, reasonable assistance to Parent and ~~the Financing Sources the Required Information; and (iv) facilitating Purchaser’s~~ its applicable subsidiaries in connection with their preparation of ~~documentation~~ pro forma financial statements and information; (g) cooperate reasonably with ~~respect~~ the Debt Financing sources' due diligence, to the ~~pledging~~ extent customary and reasonable; (h) assist Parent in connection with the preparation of ~~collateral~~pro forma financial information and pro forma financial statements and other financial data of Smart & Final and its subsidiaries to the extent required by SEC rules and regulations or necessary or reasonably required by Parent's Financing sources to be included in any customary marketing materials; provided, ~~if applicable. In addition~~that neither Smart & Final nor any of its subsidiaries or representatives will be required to actually prepare any pro forma financial information or provide any information or assistance relating to (i) the proposed debt and equity capitalization that is required for such pro forma financial information or assumed interest rates, ~~Seller will use its reasonable best efforts~~ and fees and expenses relating to ~~provide~~ such debt and equity capitalization or (ii) any post-Merger closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to ~~Purchaser~~ be incorporated into any information used in connection with the Debt Financing; (i) execute and deliver as of (but not prior to) the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light closing of the ~~circumstances under which such statements are made.~~ Merger any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent, (~~d) Notwithstanding the foregoing~~provided, that (i) none of ~~▇▇▇▇▇▇~~the documents or certificates shall be executed and/or delivered except in connection with the closing of the Merger, ~~Seller~~ (ii) the effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of the closing of the Merger and (iii) no liability shall be imposed on Smart & Final or any of its subsidiaries or any of their respective ~~Affiliates~~ officers or employees involved prior to the Closing Date) and otherwise reasonably facilitate the pledging of collateral; (j) provide reasonable assistance in connection with (A) providing information to the debt finance sources relating to current assets, cash management and accounting systems, policies and procedures for the purposes of establishing collateral arrangements as of closing, (B) collateral audits, appraisals, and due diligence examinations and (C) establishing (but not prior to closing of the Merger) bank accounts and other ~~Representatives shall be required~~ accounts and blocked account agreements and lock box arrangements to ~~pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability~~ the extent necessary in connection with the ~~Financing or~~ Debt Financing; (k) provide all documentation and other information about Smart & Final and its subsidiaries as is reasonably required under applicable "know your customer" and anti-money laundering rules and regulations including the ~~cooperation~~ USA PATRIOT Act, in each case to the extent requested in writing reasonably in advance of the closing of the Merger; and (l) arrange for customary payoff letters, lien terminations and instruments of discharge to be delivered at the closing of the Merger providing for the payoff, discharge and termination on the Closing Date of all indebtedness contemplated by ~~this Section 6.13(d)~~the Debt Commitment Letters to be paid off, discharged and terminated on the Closing Date. The Offeror (iia) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall will promptly, upon request by ~~▇▇▇▇▇▇ or Seller~~Smart & Final, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ Smart & Final for all reasonable and documented out-of-pocket ~~fees,~~ costs and expenses ~~incurred by any of them~~ (including (i) reasonable attorneys’ ' fees and ~~other~~ (ii) fees and expenses ~~as incurred)~~ of Smart & Final's accounting firms engaged to assist in connection with the Financing, including performing additional requested procedures and reviewing any offering documents, participating in any meetings) incurred by Smart & Final or any of its subsidiaries or their respective representatives in connection with the Financing, including the cooperation of Smart & Final and its subsidiaries and representatives contemplated by ~~this Section 6.13(d~~the Merger Agreement and (b) ~~and~~ shall indemnify and hold harmless ~~▇▇▇▇▇▇~~Smart & Final, ~~Seller~~ its subsidiaries and their respective ~~Affiliates~~ representatives from and against any and all ~~Liabilities~~ losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing or (including the ~~cooperation contemplated by this Section 6.13(d~~performance of certain obligations specified in the Merger Agreement) and ~~(iv) none of ▇▇▇▇▇▇~~any information used in connection therewith, ~~Seller or their respective Affiliates, or any Persons who are directors of~~ in each case other than to the extent any of the ~~foregoing, shall be required to pass resolutions~~ foregoing was suffered or ~~consents to approve or authorize the execution~~ incurred as a result of the ~~Financing~~ bad faith, gross negligence, willful misconduct or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability material breach of the ~~Financing, Alternative Financing or any other funds or financing by Purchaser~~ Merger Agreement of Smart & Final or any of its ~~Affiliates~~ subsidiaries or, in each case, their respective affiliates and representatives. Smart & Final shall, and shall cause its subsidiaries to, use commercially reasonable efforts to periodically update any Required Financial Information provided to Parent as may be necessary in accordance with the requirements set forth in the Merger Agreement. If, in connection with a ~~condition~~ marketing effort contemplated by the Debt Commitment Letters, Parent reasonably requests Smart & Final to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to Smart & Final and its subsidiaries, which Parent or its applicable subsidiaries reasonably determines to include in a customary offering document for the Debt Financing, then Smart & Final shall file a Current Report on Form 8-K containing such material non-public information. Notwithstanding anything to the contrary in the Merger Agreement, Parent may enter discussions regarding, and may enter into arrangements and agreements relating to the Equity Financing to add other equity providers, so long as in respect of any such arrangements and agreements, the following conditions are met: (a) the aggregate amount of ~~Purchaser’s~~ the Equity Financing is not reduced; (b) the arrangements and agreements, in the aggregate, would not be reasonably likely to delay, impede or ~~Purchaser~~ prevent the closing of the Merger; and (c) the arrangements and agreements would not diminish or release the pre-closing obligations of the parties to the Equity Commitment Letter as of the date of the Merger Agreement, adversely affect the rights of Parent or the Offeror to enforce its rights against the other parties to the Equity Commitment Letter, or otherwise constitute a waiver or reduction of Parent~~’s obligations~~ 's or the Offeror's rights under ~~this Agreement~~the Equity Commitment Letter.

Appears in 1 contract

Sources: Offer to Purchase (First Street Merger Sub, Inc.)

Financing. (a) Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Financing Commitment, without the prior written consent of Seller, if such amendment, modification, waiver or replacement (i) (A) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount) to an amount that is below an amount that, assuming the accuracy of the representations and warranties contained in Article III and Article IV, is sufficient to complete the transactions contemplated by this Agreement and pay all fees and amounts in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, or (B) imposes new or additional conditions or otherwise adversely expands, amends or modifies any of the conditions to the receipt of the Debt Financing, in the case of this clause (B), in a manner that would reasonably be expected to (1) materially delay or prevent either the First Closing or the Second Closing, (2) materially delay or impair the availability of the Debt Financing at the First Closing or the satisfaction of the conditions to obtaining the release of the Estimated TLM Purchase Price from the TLM Purchase Price Escrow Account at the Second Closing or materially impede the satisfaction of the conditions to obtaining the Debt Financing at the First Closing or (3) otherwise materially adversely impact the ability of Purchaser ~~Parent each~~ to enforce its rights against other parties to the Debt Financing Commitment or the definitive agreements with respect thereto (collectively, the “Restricted Financing Commitment Amendments”) (provided that, subject to the limitations set forth in this Section 6.15, Purchaser may amend the Debt Financing Commitment (I) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment, or (II) in connection with an alternative financing as contemplated by clause (b) of this Section 6.15) or (ii) results in the early termination of the Debt Financing Commitment. (b) Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain ~~and to consummate~~ the proceeds of the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the ~~Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Debt Financing Commitment, including using its reasonable best efforts to (i1) maintain in effect the Debt Financing Commitment ~~Letter~~(including by complying with so-called “flex” provisions) until the funding of the Debt Financing at or prior to the First Closing, (ii2) ~~negotiate~~ satisfy on a timely basis (or obtain a waiver of) all conditions to obtaining the Debt Financing at the First Closing as set forth in the Debt Financing Commitment (other than those that are solely within the control of Seller and ~~enter into~~ its Subsidiaries) and comply with all of its material obligations thereunder, (3) negotiate, execute and deliver definitive agreements (which with respect to the bridge facility documentation shall not be required until reasonably necessary in connection with the funding of the Debt Financing) with respect to such Debt Financing on the terms and conditions (including the ~~flex~~ “flex” provisions) ~~contained~~ contemplated by the Debt Financing Commitment (and provide executed copies of such definitive agreements to Seller) or on other terms in the aggregate materially no less favorable to Purchaser or the interests of Seller, as to conditionality, than the terms and conditions in the Debt Financing Commitment ~~Letter, subject to~~ (provided that in no event shall any ~~amendments or modifications thereto permitted by Section 6.13(b~~such definitive agreement contain terms (other than those included in the Debt Financing Commitment) that would constitute Restricted Financing Commitment Amendments), (~~iii~~4) ~~satisfy on a timely basis~~ fully pay any and all commitment fees or other fees required by the Debt Financing Commitment, and (5) upon satisfaction of the conditions ~~applicable to Purchaser or its Affiliates contained~~ set forth in the ~~Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the~~ Debt Financing ~~and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions~~Commitment, consummate the Debt Financing on at or prior to the ~~Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with~~ First Closing. In the ~~Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any~~ event ~~or circumstance that makes procurement of~~ any portion of the Debt Financing ~~reasonably unlikely to occur in~~ becomes unavailable on the ~~manner or from the sources~~ terms and conditions (including any “flex” provisions) contemplated in the ~~Commitment Letter~~Debt Financing Commitment, Purchaser shall promptly ~~(and in any event within two (2) Business Days)~~ notify ~~▇▇▇▇▇▇ and~~ Seller 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 ~~as promptly as practicable any such portion~~ to obtain alternative financing from alternative sources for such portion on terms and conditions (x) not materially less favorable to Purchaser than the Debt Financing Commitment, (y) with conditions to the funding of the Debt Financing not materially less favorable to the interests of Seller than those included in the ~~aggregate~~ Debt Financing Commitment, and (z) in an amount sufficient to ~~Purchaser and its Affiliates than~~ consummate the ~~terms and conditions set forth in~~ transactions contemplated hereby, including the ~~Commitment Letter and that would not have any~~ payment of the ~~effects prohibited~~ Estimated HHI Purchaser Price, the Estimated TLM Purchase Price, the amounts to be paid pursuant to ~~amendment by~~ Section ~~6.13(b~~2.04 and Section 2.05 (if any) (and all related fees and expenses promptly following the occurrence of such ~~financing~~event, and in any event prior to or on the ~~“Alternative~~ First Closing Date, if obtained, Purchaser shall promptly deliver to Seller true and complete copies of a new financing commitment pursuant to which any such alternative source shall have committed to provide Purchaser with any portion of the Debt Financing”). Purchaser shall ~~(A) give ▇▇▇▇▇▇~~ keep Seller reasonably informed and in reasonable detail with respect to all material developments concerning the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall promptly notify Seller ~~prompt oral and written notice~~ in writing of (1i) 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 Debt Financing Commitment of which Purchaser has become aware, which breach or default if not cured could reasonably be expected to result in the unavailability of the Debt Financing or any termination of any of the Debt Financing Commitment, (ii) of the receipt by Purchaser or any of its Affiliates or their respective employees, agents or representatives of ~~the Commitment Letter~~any notice or other communication from any Person with respect to any (x) actual or potential breach, ~~Alternative Financing or definitive financing agreements related thereto~~default, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party ~~of the~~ to any Financing Commitment ~~Letter, Alternative Financing~~ or any definitive ~~financing agreements~~ agreement related thereto or (4y) ~~the receipt of notice of any~~ material dispute or disagreement between or among ~~the~~ any parties to ~~the~~ any Financing Commitment ~~Letter, Alternative Financing~~ or any definitive ~~financing agreements~~ agreement related thereto, and (Biii) ~~upon request, otherwise keep ▇▇▇▇▇▇ and Seller~~ if for any reason Purchaser believes in good faith that (1) there is (or there is reasonably ~~informed of the status of Purchaser’s and its Affiliates’ efforts~~ likely to ~~arrange the Financing~~ be) a dispute or ~~Alternative Financing. (b) Notwithstanding anything~~ disagreement between or among any parties to the ~~contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to,~~ Debt Financing Commitment or any ~~waiver of any provision~~ definitive agreement related thereto or ~~remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy~~ (A2) ~~adds new conditions~~ there is a material possibility that it will not be able to ~~the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of~~ obtain all or any portion of the financing contemplated in the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ Commitment on the ~~Transactions~~terms, ~~(B) reduces~~ in the ~~committed amount of~~ manner or from the ~~Financing, (C) adversely affects in any material respect~~ sources contemplated by the ~~ability of Purchaser to enforce its rights against other parties to the~~ Debt Financing Commitment ~~Letter~~ or the definitive agreements related thereto. References in ~~respect thereof, or (D) could otherwise reasonably be expected~~ this Agreement to ~~prevent, impede or delay in any material respect~~ “Debt Financing” shall include the ~~consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity~~ financing ~~that could reasonably be expected to materially impair, delay or prevent consummation of the Financing~~ contemplated by the Debt Financing Commitment ~~Letter~~ as permitted by this Section 6.15 to be amended, modified or ~~any Alternative~~ replaced (including, replacement with alternative financing and alternative financing commitments pursuant to this Section 6.15) and references to “Debt Financing ~~contemplated~~ Commitment” shall include such documents as permitted by ~~any new debt commitment letter~~this Section 6.15 to be amended, modified or replaced (including replacement with alternative financing commitments pursuant to this Section 6.15), in each case from and after such amendment, modification or replacement. (c) ~~Prior~~ Unless otherwise provided below, prior to the First Closing, Seller and ~~▇▇▇▇▇▇ shall~~its Subsidiaries shall provide to Purchaser, ~~at Purchaser’s cost~~ and ~~expense,~~ shall use their reasonable best efforts ~~to, and~~ to cause ~~its Representatives to~~their respective directors, officers, employees, consultants, agents, financial advisors, attorneys, accountants and other representatives (collectively, “Representatives”) to provide to ~~Purchaser such~~ Purchaser, all cooperation as that is reasonably requested by Purchaser in connection with the ~~Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller~~Debt Financing, ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following~~including: (i) ~~assisting~~ participating in ~~preparation for~~ a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and ~~participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable~~ sessions with prospective ~~lenders~~Financing Sources, investors and ratings agencies, and reasonably cooperating with the marketing efforts of Purchaser and its Financing Sources, in each case in connection with the Debt Financing, (ii) ~~assisting~~ as promptly as reasonably practical, furnishing Purchaser and ~~the~~ its Financing Sources and their respective Representatives with (1) the Required Information, (2) with regard to the audited financial statements included in the Required Information, an opinion issued by an independent registered public accounting firm and (3) such other pertinent and customary (as compared to other transactions of this size and nature) information (including financial information, other than as provided pursuant to clause (1) above), to the extent reasonably available to Seller and its Subsidiaries, regarding the Transferred Entities and the HHI Business as may be reasonably requested by Purchaser to be necessary in order to consummate the arrangement and borrowings of loans and offerings of debt securities contemplated by the Debt Financing (it being understood that the failure to provide audited financial statements as of and for the nine-month period ended September 29, 2012 prior to December 7, 2012 or audited financial statements as of and for the year ended December 29, 2012 prior to March 8, 2013 shall not be deemed a breach of this Section 6.15(c)(ii)), (iii) assisting with the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing, including reviewing and commenting on Purchaser’s draft of a business description and “Management’s Discussion and Analysis” of the financial statements to be included in offering documents relating to the Debt Financing, (~~iii~~iv) ~~furnishing~~ before the First Closing and, to the extent reasonably necessary to allow Purchaser or any of its Affiliates to consummate a Rule 144A bond offering, providing customary management representation letters in connection with the preparation of financial statements and other financial data of the Business and the Transferred Entities and requesting accountants’ consents in connection with the use of the Business’s and the Transferred Entities’ financial statements in offering documents for a Rule 144A bond offering, (v) using reasonable best efforts to assist Purchaser in connection with its preparation of pro forma financial information to the extent required for a Rule 144A bond offering (or reasonably requested by the Financing Sources) to be included in any offering documents (including, without limitation, customary estimates, forecasts, projections and other forward-looking financial information regarding the further performance of the Business, to the extent required for a Rule 144A bond offering or reasonably requested by the Financing Sources), (vi) executing and delivering as of the First Closing, on behalf of the Transferred Entities and the Business, any necessary pledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Purchaser; provided that any obligations contained in all such agreements and documents shall be subject to the occurrence of the First Closing (or Second Closing in the case of TLM Philippines) and effective no earlier than the First Closing (or Second Closing in the case of TLM Philippines), (vii) obtaining a certificate of the Chief Financial Officer of the HHI Business with respect to solvency matters (to the extent relating to the HHI Business, but not other operations or holdings of Purchaser or its Affiliates) to the extent required by the Financing Sources, customary authorization letters with respect to the bank information memoranda and consents of accountants for use of their reports in any materials relating to the Debt Financing, (viii) taking all reasonable actions necessary to permit the prospective lenders involved in the Debt Financing and the Financing Sources to evaluate the ~~Required Information;~~ Business’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the First Closing and to assist with other collateral audits, (ix) providing reasonable assistance to Purchaser for Purchaser to establish bank and other accounts, blocked account agreements, and lock box arrangements for the Transferred Entities to the extent necessary in connection with the collateral arrangements to be entered into in connection with the Debt Financing, (x) taking all corporate actions, subject to the occurrence of the First Closing, reasonably requested by Purchaser that are necessary or customary to permit the consummation of the Debt Financing, (xi) providing all documentation and other information about the Business and the Transferred Entities as is required by applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act to the extent reasonably requested at least five Business Days prior to the anticipated First Closing Date, (xii) using reasonable best efforts to obtain accountants’ comfort letters (it being understood, notwithstanding anything in this Agreement to the contrary, that, as a result of the potential for the preparation of audited financial statements as of and for the nine-month period ending September 29, 2012 and as of and for the 12-month period ending December 29, 2012, such comfort letters need not provide “negative assurance” comfort with respect to unaudited financial data or statements relating to the HHI Business as of dates or for periods ending between July 1, 2012 to September 28, 2012 and September 30, 2012 to December 28, 2012, respectively), legal opinions, surveys and title insurance at the expense of and as reasonably requested by Purchaser on behalf of the Financing Sources, and (ivxiii) ~~facilitating Purchaser~~without prejudice to Seller’s ~~preparation of documentation~~ right to deliver, or the contents of, the HHI Closing Statement pursuant to Section 2.04(c) or the TLM Closing Statement pursuant to Section 2.05(b), within ten (10) Business Days after the First Closing Date, providing Purchaser with a preliminary closing balance sheet with respect to the ~~pledging~~ HHI Business as of ~~collateral~~the First Closing Date and within ten (10) Business Days after the Second Closing Date, ~~if applicable. In addition~~providing Purchaser with a preliminary closing balance sheet with respect to the TLM Business as of the Second Closing Date, ~~Seller will use its reasonable best efforts~~ in each case, that are prepared on a basis consistent with the Financial Statements with respect to ~~provide~~ the assets and liabilities conveyed to Purchaser, and assisting Purchaser and Purchaser’s registered independent public accounting firm in connection with Purchaser’s accounting firm’s audit procedures pertaining to such closing balance sheets; provided, however, that nothing herein shall require such cooperation to the ~~Financing Sources~~ extent it would interfere unreasonably with the ~~Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage~~ Business or ~~omit~~ operations of Seller and its Subsidiaries; and provided, further, that Seller, its Subsidiaries and their respective Representatives shall not be required to ~~state a material fact necessary~~ authorize, execute, deliver or perform under any agreement with respect to ~~make~~ the ~~statements contained therein regarding~~ Debt Financing that is not contingent upon the ~~Purchased Assets~~ occurrence of the First Closing (or ~~the Triage Business not materially misleading~~ Second Closing in the ~~light~~ case of TLM Philippines) or that would be effective prior to or simultaneous with the ~~circumstances under which such statements are made.~~ First Closing (~~d) Notwithstanding~~ or Second Closing in the ~~foregoing, (i) none~~ case of ~~▇▇▇▇▇▇,~~ TLM Philippines). Neither Seller or nor any of ~~their respective Affiliates or other Representatives~~ its Subsidiaries shall be required to pay any commitment or other similar ~~fee, provide any security, execute any document,~~ fees or make any ~~representations, provide any indemnification or incur any~~ other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Acquisition Agreement (Spectrum Brands, Inc.)

Financing. (a) ~~Purchaser~~ The Buyer shall, and ~~Purchaser Parent each~~ shall cause its Affiliates to, use its commercially reasonable ~~best~~ efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to~~ obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ as promptly as practicable after the date hereof on the terms and conditions described in the Debt Commitment Letter (including the flex ~~provisions related thereto~~provisions). In furtherance of the foregoing, ~~subject to any amendments or modifications thereto permitted by Section 6.13(b)~~the Buyer shall, ~~including using~~ and shall cause its Affiliates to, use its commercially reasonable ~~best~~ efforts to (i) ~~maintain in effect~~ comply with its obligations under the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements ~~with respect to the Financing~~ on ~~the~~ terms and conditions (including ~~the~~ flex provisions) that, taken as a whole, are no less favorable in the aggregate to the Buyer than those contained in the Debt Commitment ~~Letter~~Letter (including flex provisions), ~~subject~~ which such terms shall not in any respect expand on the conditions to ~~any amendments~~ the funding of the Financing at the Closing or ~~modifications thereto permitted by Section 6.13(b)~~reduce the aggregate amount of the Financing available to be funded at Closing, (iii) satisfy on a timely basis (or obtain a waiver to) all conditions applicable to ~~Purchaser or its Affiliates~~ the Buyer contained in the Debt Commitment ~~Letter~~Letter (including definitive agreements related thereto), including the payment of any commitment, engagement or placement fees required as a condition to the Financing and ~~due and payable by Purchaser or its Affiliates,~~ (iv) ~~upon the satisfaction or waiver of such conditions,~~ consummate the Financing on at or prior to the Closing ~~Date~~Date (it being understood that it is not a condition to the Closing under this Agreement, nor to the consummation of the Contemplated Transactions, for the Buyer to obtain the Financing or any alternative financing). Notwithstanding anything to the contrary in this Section 7.9, the Buyer shall, and shall cause each of its Affiliates to, use its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof and (ii) enforce all of its rights under the Debt Commitment Letter (or any definitive agreements relating thereto). The Buyer shall keep the Company informed on a regular and current basis and in reasonable detail of the status of its efforts to arrange the Financing (including ~~by drawing on~~ providing the Company with copies of all definitive agreements and other final documents related to the Financing). Without limiting the generality of the foregoing, the Buyer shall give the Company prompt notice and, in any ~~interim or bridge financing facilities contemplated thereby~~event, within two (2) Business Days, (vx) ~~obtain such third-party consents as may be reasonably required in connection with the Financing, and~~ of any breach or default (~~vi) comply with its obligations under the Commitment Letter. If Purchaser~~ or ~~Purchaser Parent becomes aware of~~ any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to any of the Debt Commitment Letter or definitive agreements related to the Financing of which the Buyer becomes aware, (y) of the receipt by the Buyer or any of its controlled or controlling Affiliates of (A) any written notice or (B) other written communication, in each case from any Financing source with respect to any (1) actual or threatened breach, default, termination or repudiation by any party to any of the Debt Commitment Letter or other Contracts related to the Financing or (2) material dispute or disagreement between or among any parties to any of the Debt Commitment Letter or other Contracts related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at the Closing and (z) if at any time for any reason the Buyer believes in good faith that ~~makes procurement of~~ it will not be able to obtain all or any portion of the Financing ~~reasonably unlikely to occur~~ on the terms and conditions, in the manner or from the sources contemplated in by any of the Debt Commitment ~~Letter~~Letter or other Contracts related to the Financing. As soon as reasonably practicable, ~~Purchaser shall promptly (and~~ but in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any Days of the ~~effects prohibited pursuant~~ date the Company delivers to ~~amendment by Section 6.13(b) (such financing~~the Buyer a written request, the ~~“Alternative Financing”~~Buyer shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (x). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2y) ~~any known breach~~ or ~~default by any party~~ (~~other than Purchaser or its Affiliates~~z) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent immediately preceding sentence. The Buyer shall not, without the prior written consent of ~~▇▇▇▇▇▇~~the Company, amend, modify, supplement or waive any of the conditions or contingencies to funding contained in the Debt Commitment Letter (including any Contracts related thereto) or any other provision of, or remedies under, the Debt Commitment Letter (including any Contracts related thereto) if such amendment, modification or waiver would, (i) ~~permit any termination, amendment~~ reduce (or ~~modification to, or any waiver~~ would reasonably be expected to have the effect of ~~any provision or remedy under,~~ reducing) the ~~Commitment Letter or Fee Letters if~~ aggregate amount of the Financing (unless the representations in Section 5.10 (as though made at the time of the effectuation of such ~~termination,~~ amendment, modification, ~~waiver~~ supplement or ~~remedy (A~~replacement) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller shall remain true and ~~▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser~~ correct after taking into account such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(dreduction), (ii) ~~none of ▇▇▇▇▇▇, Seller~~ impose new or ~~any of their respective Affiliates~~ additional conditions or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, terms (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) except in connection with any “market flex” terms contained in the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.Debt

Appears in 1 contract

Sources: Sale Agreement (Nuance Communications, Inc.)

Financing. (ai) ~~Purchaser~~ Subject to the terms and ~~Purchaser~~ conditions of this Agreement, each of Parent ~~each~~ and Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to~~ obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions ~~described in the Commitment Letter~~ (including the flex ~~provisions related~~ provisions) described in the Financing Letters, and shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Financing Letters if such amendment, modification or waiver (A) with respect to the Financing Letters, reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount and (y) after giving effect to any of the transactions referred to in clause “(x)” above, the representation and warranty set forth in Section 4.10 shall be true and correct) or (B) imposes new or additional conditions precedent or otherwise expands, amends or modifies any of the conditions precedent to the receipt of the Financing in a manner adverse to Parent and Merger Sub or otherwise expands, amends or modifies any other provision of the Financing Letters, in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding of the Financing (or satisfaction of the conditions precedent to the Financing) on the Closing Date or (y) adversely impact the ability of Parent or Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Financing Letters or the definitive agreements with respect thereto, in each of clauses “(x)” and “(y)” in any material respect (provided that, subject to ~~any amendments or modifications thereto permitted by~~ compliance with the other provisions of this Section ~~6.13(b~~6.11(a), ~~including using~~ Parent and Merger Sub may amend the Debt Commitment Letter to add additional lenders, arrangers, bookrunners and agents). Parent shall promptly deliver to the Company copies of any such amendment, modification or replacement. For purposes of this Section 6.11, references to “Financing” shall include the financing contemplated by the Financing Letters as permitted to be amended, modified or replaced by this Section 6.11(a) and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 6.11(a). (ii) Each of Parent and Merger Sub shall use its reasonable best efforts (A) to ~~(i)~~ maintain in effect the ~~Commitment Letter~~Financing Letters, (iiB) to negotiate and enter into definitive agreements with respect to the ~~Financing~~ Debt Commitment Letter on the terms and conditions (including the flex provisions) contained in the Debt Commitment Letter (or on terms no less favorable (taken as a whole) to Parent or Merger Sub than the terms and conditions (including flex provisions) in the Debt Commitment Letter~~, subject to any amendments or modifications thereto permitted by Section 6.13(b~~), (~~iii~~C) to satisfy on a timely basis all conditions ~~applicable~~ precedent to ~~Purchaser or its Affiliates contained~~ funding in the Debt Commitment ~~Letter, including~~ Letter and such definitive agreements thereto (other than any condition where the ~~payment~~ failure to be so satisfied is a direct result of ~~any commitment, engagement or placement fees required as a condition~~ the Company’s failure to furnish information described in Section 6.11(b)) and in the ~~Financing~~ Equity Funding Letter and ~~due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions,~~ to consummate the Financing on at or prior to the earlier to occur of the Acceptance Time and the Closing, and to instruct the lenders and the other persons committing to fund the Financing at the Closing ~~Date, including by drawing on any interim or bridge financing facilities contemplated thereby~~to provide such Financing, (vD) ~~obtain such third-party consents as~~ to satisfy the conditions precedent required to be satisfied by Parent or Merger Sub under the Financing Letters to cause the funding of the Financing and (E) if appropriate and practical under the circumstances and available sources of cash are not otherwise available to contemplate the transactions contemplated herein, enforce its rights under the Financing Letters (including, if appropriate, through litigation pursued in good faith). Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies of the material definitive agreements for the Debt Financing (provided that any fee letter may be ~~reasonably required~~ redacted). Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice (x) of any breach or default by any party to any of the Financing Letters or definitive agreements related to the Financing of which Parent or Merger Sub become aware, (y) of the receipt of (A) any written notice or (B) other written communication, in ~~connection~~ each case from any Financing Source with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any of the ~~Financing~~Financing Letters or definitive agreements related to the Financing of any provisions of the Financing Letters or definitive agreements related to the Financing or (2) material dispute or disagreement between or among any parties to any of the Financing Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, and (viz) ~~comply with its obligations under the Commitment Letter. If Purchaser~~ if at any time for any reason Parent or ~~Purchaser Parent becomes aware of any event~~ Merger Sub believes in good faith that it will not be able to obtain all or ~~circumstance that makes procurement of~~ any portion of the Financing ~~reasonably unlikely to occur~~ on the terms and conditions, in the manner or from the sources contemplated in by any of the ~~Commitment Letter~~Financing Letters or definitive agreements related to the Financing. As soon as reasonably practicable, ~~Purchaser shall promptly (and~~ but in any event within two business days of the date the Company delivers to Parent or Merger Sub a written request, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause “(~~2) Business Days) notify ▇▇▇▇▇▇~~ x)”, “(y)” or “(z)” of the immediately preceding sentence; provided, that they need not provide any information believed to be privileged or that is requested for purposes of litigation. Subject to the terms and ~~Seller~~ conditions of this Agreement, upon the occurrence of any circumstance referred to in clause “(x)”, “(y)(A)” or “(z)” of the second preceding sentence or if any portion of the Debt Financing otherwise becomes unavailable, and such portion is reasonably required to pay the Offer Price in respect of each Share validly tendered and accepted for payment in the Offer, the aggregate Merger Consideration, and all fees, expenses and other amounts contemplated to be paid by Parent, Merger Sub or the Surviving Corporation pursuant to this Agreement, Parent and Merger Sub shall use ~~its~~ their reasonable best efforts to arrange ~~as promptly as practicable any such portion~~ and obtain in replacement thereof alternative debt financing from alternative sources on in an amount sufficient to consummate the Transactions with terms and conditions not materially less favorable ~~in the aggregate~~ (taken as a whole) to ~~Purchaser~~ Parent and ~~its Affiliates~~ Merger Sub than the terms and conditions (taken as a whole) set forth in the Debt Commitment Letter ~~and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b)~~ (~~such financing, the~~ “~~Alternative~~ Available Financing”), as promptly as reasonably practicable following the occurrence of such event. ~~Purchaser~~ Parent shall deliver to the Company true and complete copies of all Available Financing Letters (Aincluding Redacted Fee Letters) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1)~~ pursuant to which any ~~breach or default by Purchaser or its Affiliates~~ such alternative source shall have committed to provide any portion of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Debt Financing. (biii) ~~Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without~~ Without the prior written consent of ~~▇▇▇▇▇▇~~the Company, ~~(i) permit any termination~~other than with respect to the Merger, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, ~~(B) modifies~~ and the other Transactions contemplated hereby, Parent shall not, nor shall it permit any ~~existing conditions~~ of its controlled Affiliates to, enter into any merger, acquisition, joint venture, disposition or debt or equity financing that would reasonably be expected to ~~the Financing in a manner that affects the~~ impair, delay or prevent consummation of all or any portion of the ~~Financing~~ Debt Financing. (b) Prior to ~~below a level that would impair Purchaser’s ability~~ the earlier to ~~consummate the Transactions, (B) reduces the committed amount~~ occur of the ~~Financing~~Acceptance Time and the Closing, ~~(C) adversely affects~~ 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 Merger Sub, in ~~any material respect~~ each case at Parent’s sole expense, all cooperation reasonably requested by Parent or Merger Sub that is customary in connection with the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation arrangement of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation type of ~~the~~ Debt Financing contemplated by the Debt Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided in all cases that such requested cooperation does not unreasonably interfere with the ongoing operations of ~~Seller~~the Company and its Subsidiaries), ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance~~ which reasonable best efforts shall include ~~the following:~~ (i) ~~assisting~~ (A) furnishing Parent and Merger Sub and their Financing Source, as promptly as reasonably practicable following Parent’s or Merger Sub’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 Merger Sub to consummate the Debt Financing and (B) furnishing Parent and Merger Sub and their Financing Sources, as promptly as reasonably practicable following Parent’s or Merger Sub’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 Debt Financing, to the extent reasonably available to the Company, its Subsidiaries or its Representatives and reasonably requested in writing by Parent or Merger Sub to assist in preparation ~~for and participation in~~ of customary ~~marketing efforts related~~ rating agency or lender presentations relating to ~~the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies~~such arrangement of loans, (ii) ~~assisting Purchaser~~ furnishing all consolidated financial statements, pro forma consolidated financial statements, business and other financial data, and audit reports of the Company and its Subsidiaries, and any supplements thereto required under the Debt Financing Letter and written financial information reasonably necessary for the Parent and the Financing Sources to prepare the “Confidential Information Memorandum” referred to in the ~~preparation~~ Debt Financing Letter (the information referred to in clauses “(i)” and “(ii)” being referred to in this Agreement as the “Required Information”), provided that the Company shall be required to furnish a pro forma consolidated balance sheet and related pro forma statement of operations, prepared after giving effect to the Merger and the Financing as if the Merger and Financing had occurred as of the date of the pro forma financial statements and as if Regulation S-X under the Securities Act were applicable to such pro forma financial statements and such pro forma financial statements shall be considered part of the Required Information, only if Parent or Merger Sub has provided the Company information relating to the proposed debt and equity capitalization and preliminary allocation of purchase price in accordance with ASC 805 “Business Combinations” prior to the date pro forma financial statements are required to be delivered, which information shall include (A) ~~a customary offering document~~any post-Closing or pro forma cost savings, ~~private placement memorandum and/or bank information memorandum~~ capitalization and ~~similar marketing documents for~~ other post-Closing or pro forma adjustments (and the ~~Financing or~~ assumptions relating thereto) desired by the ~~Alternative Financing, as applicable,~~ Parent to be reflected in such pro forma financial statements and (B) any other information that may be reasonably and timely requested by the Company concerning the assumptions underlying the post-Closing or pro forma adjustments to be made in such pro forma financial statements, which assumptions shall be the responsibility of Parent, (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 Debt 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 Debt Financing; provided that any rating agency presentations, bank information memoranda, and similar documents required in connection with the Debt Financing shall contain disclosure reflecting the Surviving Corporation and/or its Subsidiaries as the obligor, (~~iii~~v) ~~furnishing Purchaser~~ 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 Debt 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 Merger Sub (including delivery of borrowing base certificates and delivery of a solvency certificate of the chief financial officer of the Company in substantially the form contemplated by the Debt Commitment Letter (as in effect on the date hereof), (vii) assisting in (A) the preparation, execution and delivery of one or 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 Merger Sub in connection with the Debt 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 loan financing contemplated by the Debt Commitment Letter, providing customary authorization letters to the Financing Source for the Debt Financing authorizing the distribution of information to prospective lenders and containing a customary representation to the Financing Source for the Debt Financing that such information does not contain a material misstatement or omission and containing a representation to the Financing Sources that the ~~Required Information; and (iv) facilitating Purchaser’s preparation~~ public side versions of ~~documentation with respect to the pledging of collateral~~such documents, if ~~applicable. In addition~~any, ~~Seller will use~~ do not include material non-public information about the Company or its Subsidiaries or their securities, (ix) using reasonable best efforts to ~~provide~~ arrange for customary payoff letters, lien terminations and instruments of discharge to ~~Purchaser~~ be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all indebtedness contemplated by the Debt Commitment Letter to be paid off, discharged and terminated on the Closing Date, (x) providing at least five 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 Source for the Debt 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 Debt Financing, (xii) assisting in obtaining corporate and facilities ratings for the Debt Financing, (xiii) 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 ~~Required Information in a manner that~~Closing Date) on or prior to the Closing Date, ~~taken as a whole, does not contain any untrue statement~~ and (xv) ensuring that there are no competing issues of ~~a material fact regarding the Purchased Assets~~ debt securities or ~~the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light~~ syndicated credit facilities of the ~~circumstances under which such statements are made. (d) Notwithstanding~~ Company and its Subsidiaries being offered or arranged between the ~~foregoing, (i) none~~ execution of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with this Agreement and the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser Effective Time. Parent shall promptly, upon request by ~~▇▇▇▇▇▇ or Seller~~the Company, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ the Company for all reasonable out-of-pocket ~~fees,~~ costs and expenses ~~incurred by any of them~~ (including reasonable attorneys’ ~~fees~~ and ~~other fees~~ accountants costs and ~~expenses as incurred~~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 ~~6.13(d)~~ 6.11 and shall indemnify and hold harmless ~~▇▇▇▇▇▇~~the Company, ~~Seller~~ its Subsidiaries and their respective ~~Affiliates~~ Representatives from and against any and all ~~Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d)~~ direct and actual losses (~~iv) none of ▇▇▇▇▇▇~~other than lost profits), ~~Seller or their respective Affiliates~~damages, ~~or any Persons who are directors of any of the foregoing~~claims, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.costs o

Appears in 1 contract

Sources: Merger Agreement (Websense Inc)

Financing. (a) ~~Purchaser~~ Buyer shall use, and ~~Purchaser Parent~~ shall cause its Affiliates and each ~~shall use~~ of its and their respective Representatives to use, their 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, obtain and to consummate the Debt Financing ~~(or any Alternative Financing) on~~ upon the terms and subject only to the conditions ~~described~~ (including, to the extent required, the full exercise of any “flex” provisions) expressly set forth in the Debt Commitment ~~Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Letters, including using ~~its~~ reasonable best efforts to (i) to maintain in force and effect the Debt Commitment ~~Letter~~Letters in accordance with the terms thereof until the consummation of the transactions contemplated hereby, (ii) ~~negotiate and~~ to negotiate, enter into and deliver definitive agreements with respect to the Debt Financing on (collectively, the “Debt Financing Agreements”) upon the terms and subject only to the conditions expressly set forth in the Debt Commitment Letters (including ~~the flex~~ any applicable “flex” provisions) ~~contained in the Commitment Letter,~~ and further subject to any ~~amendments~~ amendments, modifications or ~~modifications thereto permitted~~ supplements thereto, or replacements or waivers thereof, in each case, not prohibited by ~~Section 6.13(b)~~this Agreement, (iii) to satisfy on a timely basis (but in any event, at or prior to Closing) all conditions ~~applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition~~ to the funding of the full amount of the Debt Financing that are within Buyer’s control, and ~~due and payable by Purchaser or its Affiliates,~~ (iv) ~~upon the satisfaction~~ to enforce its rights under or ~~waiver of such conditions, consummate the Financing on or prior~~ with respect to the ~~Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with~~ Debt Commitment Letters and the ~~Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the~~ Debt Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative FinancingAgreements. (b) ~~Notwithstanding anything to~~ Buyer shall not permit any amendment, supplement or other modification to, or grant any waiver of any terms under, the ~~contrary~~ Debt Commitment Letters, in ~~this Agreement, Purchaser and Purchaser Parent shall not,~~ each case without the prior written consent of ~~▇▇▇▇▇▇~~the Company (not to be unreasonably withheld, ~~(i) permit any termination, amendment or modification to~~conditioned, or ~~any waiver of any provision or remedy under~~delayed), ~~the Commitment Letter or Fee Letters~~ if such ~~termination,~~ amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereofsupplement, or ~~(D) could otherwise~~ other modification or waiver would or would reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) ~~a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for~~ reduce the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light aggregate amount of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Debt Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including ~~reasonable attorneys’~~ by increasing the amount of fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing to be paid or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.original

Appears in 1 contract

Sources: Merger Agreement (Avery Dennison Corp)

Financing. (a) ~~Purchaser~~ Each of Parent and ~~Purchaser Parent each~~ Merger Sub shall use ~~its~~ 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, obtain and to consummate the Financing ~~(or any Alternative Financing)~~ in an amount required to satisfy the Financing Uses not later than the Closing Date on the terms and conditions described in or contemplated by the Commitment ~~Letter~~ Letters (including complying with any valid request requiring the ~~flex~~ exercise of “market flex” provisions ~~related thereto~~in the fee letter associated with the Debt Commitment Letter) (or on other terms that, with respect to conditionality, are not less favorable to Parent than the terms and conditions (including any “market flex” provisions) set forth in the Commitment Letters so long as such other terms would not have any result, event or consequence described in any of clauses (A) through (D) of Section 4.16(c)~~, subject to any amendments or modifications thereto permitted by Section 6.13(b~~), including using ~~its~~ reasonable best efforts to (i) maintain in full force and effect the Commitment ~~Letter~~Letters, (ii) negotiate and ~~enter into~~ execute definitive agreements with respect to the Debt Financing required to satisfy the Financing Uses (which, with respect to the bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Debt Financing required to satisfy the Financing Uses (after taking into account any available Equity Financing and available cash of the Company and its Subsidiaries)) on the terms and conditions ~~(including the flex provisions)~~ contained in the Debt Commitment ~~Letter~~Letter (which may reflect “market flex” provisions) (or on other terms that, ~~subject~~ with respect to conditionality, are not less favorable to Parent than the terms and conditions contained in the Debt Commitment Letter (including any ~~amendments~~ “market flex” provisions) so long as such other terms would not have any result, event or ~~modifications thereto permitted by~~ consequence described in clauses (A) through (D) of Section ~~6.13(b~~4.16(c)) (such definitive agreements, the “Definitive Financing Agreements”), (iii) satisfy and comply with on a timely basis (except to the extent that Parent and Merger Sub have obtained the waiver of) all conditions and covenants to the funding or investing of the Financing required to satisfy the Financing Uses applicable to ~~Purchaser~~ Parent or ~~its Affiliates~~ Merger Sub in the Commitment Letters and the Definitive Financing Agreements that are within their control that are to be satisfied by Parent or Merger Sub, (iv) enforce Parent’s and Merger Sub’s rights under the Commitment Letters and (v) consummate the Financing in an amount required to satisfy the Financing Uses at or prior to the Closing, which such reasonable best efforts shall include, in the event that all conditions contained in the Commitment ~~Letter, including~~ Letters or the ~~payment of any commitment, engagement or placement fees required as a condition~~ Definitive Financing Agreements applicable to the ~~Financing and due and payable by Purchaser~~ funding or ~~its Affiliates, (iv) upon the satisfaction or waiver~~ investing of ~~such conditions, consummate~~ the Financing on required to satisfy the Financing Uses (except those that, by their nature, are to be satisfied at the Closing) have been satisfied or ~~prior~~ waived, taking action to cause the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) Debt Financing Sources thereunder to comply with ~~its~~ their respective obligations under the Commitment ~~Letter~~Letters or the Definitive Financing Agreements, including to provide the Financing required to satisfy the Financing Uses on the Closing Date. ~~If Purchaser or Purchaser~~ Parent ~~becomes aware of any event or circumstance that makes procurement of any portion~~ shall, upon the reasonable request of the ~~Financing~~ Company, keep the Company informed on a reasonably ~~unlikely to occur~~ current basis in ~~the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its~~ reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice detail of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of developments concerning the status of ~~Purchaser’s and~~ its ~~Affiliates’~~ efforts to arrange the Debt Financing. Upon the reasonable request of the Company, Parent and Merger Sub shall promptly provide the Company with copies of any executed Definitive Financing Agreements. Neither Parent nor Merger Sub shall release or ~~Alternative Financing. (b) Notwithstanding anything~~ consent to the ~~contrary~~ termination of the obligations of the Debt Financing Sources to provide the Debt Financing in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions an amount required to ~~the Financing, (B) modifies any existing conditions to~~ satisfy the Financing ~~in a manner that affects the consummation of all or~~ Uses (after taking into account any ~~portion~~ available Equity Financing and available cash of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce Company and its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letterSubsidiaries). (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Shutterfly Inc)

Financing. (a) The Purchaser shall use its reasonable best efforts to obtain the Financing on the terms and conditions (including the flex provisions in any related fee letter) described in the Financing Letters as promptly as possible and shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Financing Letters if such amendment, modification or waiver (A) reduces (or could have the effect of reducing) the aggregate amount of the Equity Financing or the Debt Financing (including by increasing the amount of fees to be paid or original issue discount) unless (x) the Debt Financing or the Equity Financing, as applicable, is increased by a corresponding amount and (y) after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 5.07 shall be true and correct, (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing, or (C) otherwise expands, amends or modifies any other provision of the Financing Letters in a manner that would reasonably be expected to (x) delay or prevent the Closing or delay, prevent or make less likely the funding of the Financing (or satisfaction of the conditions to the funding of the Financing) or (y) adversely impact the ability of the Purchaser ~~Parent~~ to enforce its rights against other parties to the Financing Letters or the definitive agreements with respect thereto (provided, that, subject to compliance with the other provisions of this Section 6.15, the Purchaser may amend the Debt Commitment Letter solely to add additional arrangers, bookrunners and agents). The Purchaser shall promptly deliver to Sellers copies of any such amendment, modification or replacement. For purposes of this Agreement, references to “Financing” shall include the financing contemplated by the Financing Letters as permitted or required, as the case may be, to be amended, modified or replaced by this Section 6.15(a) and references to “Financing Letters” shall include such documents as permitted, or required, as the case may be, to be amended, modified or replaced by this Section 6.15(a). (b) The Purchaser shall use its reasonable best efforts to, as promptly as possible, (A) maintain in effect the Financing Letters, (B) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions (including the flex provisions) contained in the Debt Commitment Letter (or on terms not materially less favorable to the Purchaser than the terms and conditions (including flex provisions) in the Debt Commitment Letter), (C) satisfy on a timely basis all conditions to funding in the Debt Commitment Letter and such definitive agreements thereto and in the Equity Commitment Letter and consummate the Financing at or prior to the Closing, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Financing to fund such Financing at the Closing, (D) enforce its rights under the Financing Letters and (E) comply with its obligations under the Financing Letters. The Purchaser shall keep Sellers informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing as reasonably requested by Sellers and provide to the Companies copies of the material definitive agreements for the Debt Financing and such other information and documentation as shall be reasonably requested by the Companies for purposes of monitoring the progress of the financing activities. Without limiting the generality of the foregoing, the Purchaser shall give Sellers prompt notice (x) of any breach or default by any party to any of the Financing Letters or definitive agreements related to the Financing of which the Purchaser become aware, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Financing Source with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any of the Financing Letters or definitive agreements related to the Financing of any provisions of the Financing Letters or definitive agreements related to the Financing or (2) material dispute or disagreement between or among any parties to any of the Financing Letters or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, and (z) if at any time for any reason the Purchaser believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Financing Letters or definitive agreements related to the Financing. As soon as reasonably practicable, but in any event within two (2) Business Days of the date Sellers delivers to the Purchaser a written request, the Purchaser shall provide any information reasonably requested by the Companies relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence. (c) In event any portion of the Financing becomes unavailable on the terms and conditions (including, in respect of the Debt Financing, any “flex” provisions applicable thereto) contemplated in the Financing Letters, in each case, for any reason whatsoever, the Purchaser 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 to obtain ~~and~~ alternative financing from alternative sources in an amount sufficient, when added to the portion of the Financing that is available, to consummate the transactions contemplated by this Agreement and to pay all related fees and expenses (“Alternative Financing”) as promptly as practicable following the occurrence of such event and to obtain and provide Sellers with a copy of, the new financing commitment that provides for such Alternative Financing (~~or any~~ the “Alternative ~~Financing) on~~ Financing Commitment Letter”). Without limiting the ~~terms and conditions described~~ generality of the foregoing, in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event ~~or circumstance that makes procurement of~~ any portion of the Financing ~~reasonably unlikely to occur in~~ becomes unavailable for any reason and, after four consecutive weeks or by the ~~manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within~~ date which is two (2) ~~Business Days~~weeks prior to the Termination Date, Purchaser has not secured Alternative Financing or alternative equity commitments in respect of the amount of the Financing so unavailable, Sellers shall have the right to provide, or to cause Parent or its or their respective Subsidiaries to provide, alternative equity financing on substantially the same terms (including price) ~~notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources~~ being provided by the equity investors in Purchaser and/or alternate debt financing on ~~terms and conditions not materially less favorable in~~ substantially the ~~aggregate to Purchaser and its Affiliates than the~~ same terms and conditions set forth in the Debt Commitment Letter ~~and that would not have any~~ in an amount sufficient, when added to the portion of the ~~effects prohibited pursuant~~ Financing that is available, to ~~amendment~~ consummate the transactions contemplated by ~~Section 6.13(b~~this Agreement and to pay all related fees and expenses (and the Parties shall cooperate in good faith to implement any such alternative equity and/or debt financing). As applicable, references in this Agreement (i) ~~(such financing, the “~~to Financing or Debt Financing shall include Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (Bii) ~~upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of~~ to any Financing Letter or Debt Commitment Letter shall include the ~~status of Purchaser’s and its Affiliates’ efforts to arrange the~~ Alternative Financing ~~or Alternative Financing~~Commitment Letter. (bd) ~~Notwithstanding anything to~~ If the ~~contrary in this Agreement~~Debt Commitment Letter is replaced, ~~Purchaser and Purchaser Parent shall not~~amended or modified, ~~without the prior written consent~~ including as a result of ~~▇▇▇▇▇▇, (i) permit any termination, amendment or modification to~~obtaining Alternative Financing, or ~~any waiver of any provision or remedy under,~~ if the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of Purchaser substitutes other debt financing for all or any portion of the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ in accordance with this Section 6.15, the ~~Transactions~~Purchaser shall comply with its obligations under this Agreement, ~~(B) reduces the committed amount of the Financing~~including this Section 6.15, ~~(C) adversely affects in any material~~ with respect ~~the ability of Purchaser to enforce its rights against other parties~~ to the Debt Commitment Letter as so replaced, amended or modified to the ~~definitive agreements in respect thereof, or (D) could otherwise reasonably be expected~~ same extent that the Purchaser were obligated to ~~prevent, impede or delay in any material respect~~ comply prior to the ~~consummation of~~ date the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Debt Commitment Letter was so replaced, amended or ~~any Alternative Financing contemplated by any new debt commitment letter~~modified. (ce) Prior to the ~~Closing~~Closing Date, ~~Seller~~ Sellers, the Companies and ~~▇▇▇▇▇▇ shall, at Purchaser’s cost and expense,~~ their respective Subsidiaries shall use their reasonable best efforts toto provide to the Purchaser, and shall use their commercially reasonable efforts to cause ~~its Representatives to~~their representatives, ~~provide~~ including legal and accounting representatives, to ~~Purchaser~~ provide, in each case at the Purchaser’s sole expense, such cooperation ~~as is~~ reasonably requested by the Purchaser that is customary in connection with the arrangement of the Debt Financing (~~provided~~ provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of ~~Seller~~the Business), ~~▇▇▇▇▇▇~~ including reasonable best efforts to (i) furnish to the Purchaser such financial and other pertinent information regarding Sellers, the Companies and their respective ~~Affiliates). Such assistance~~ Subsidiaries as may be reasonably requested by the Purchaser and that is customarily needed for financings of the type contemplated by the Debt Commitment Letter (provided, that Sellers, the Companies and their respective Subsidiaries shall ~~include the following: (i) assisting in preparation for~~ only be obligated to deliver such financial statements and ~~participation in customary marketing efforts related~~ information to the ~~Financing~~ extent they may be reasonably obtained from the books and records of Sellers, the Companies and their respective Subsidiaries without undue effort or expense and such financial statements and information shall not include (x) any pro forma financial statements or information or (y) any information relating to, or based on, all or any component of the ~~Alternative~~ Financing~~, as applicable with prospective lenders, investors and ratings agencies~~), (ii) ~~assisting~~ participate in a reasonable number of meetings and presentations with prospective lenders and investors, and sessions with the ratings agencies contemplated by the Debt Commitment Letter, in each case in connection with the Debt Financing and only to the extent customarily needed for financings of the type contemplated by the Debt Commitment Letter; (iii) reasonably assist the Purchaser and the Financing Sources in ~~the~~ their preparation of (A) ~~a customary offering document, private placement memorandum and/or~~ any bank information ~~memorandum~~ memoranda and ~~similar marketing documents for the Financing or the Alternative Financing, as applicable,~~ related lender presentations and (B) materials for rating agency presentations, ; (~~iii~~iv) ~~furnishing~~ reasonably cooperate with the syndication and marketing efforts of the Purchaser and the Financing Sources ~~the Required Information; and (iv) facilitating Purchaser’s preparation of documentation~~ with respect to the ~~pledging~~ Debt Financing, in each case, only to the extent customarily needed for financings of ~~collateral~~the type contemplated by the Debt Commitment Letter; (v) provide the Purchaser all documentation and other information with respect to Sellers, the Companies and their respective Subsidiaries as shall have been reasonably requested in writing by the Purchaser at least nine (9) Business Days prior to the Closing Date that is required in connection with the Debt Financing by U.S. regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations; and (vi) facilitate the providing of documents evidencing the release of Liens applicable to the Companies, the Transferred Subsidiaries or the Business Assets, in each case required to be released at Closing, including but not limited to, Liens arising pursuant to or securing the Credit Agreement (if ~~applicable. In addition~~requested by the Debt Financing Sources), ~~Seller will use its reasonable best efforts~~ guarantees and granting of security interests in and pledges of collateral and assisting in the negotiation and preparation, and execution and delivery at the Closing, of the definitive documents solely to ~~provide to Purchaser and~~ the ~~Financing Sources~~ extent required by the ~~Required Information in a manner that, taken~~ Debt Commitment Letter as a ~~whole, does not contain any untrue statement of a material fact regarding~~ condition to funding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Debt Financing. Notwithstanding the foregoing, (A) such requested cooperation shall not (i) unreasonably disrupt the operations of the Business or Sellers, the Companies or their respective Subsidiaries or (ii) cause significant competitive harm to the Business or Sellers, the Companies or their respective Subsidiaries if the transactions contemplated by this Agreement are not consummated, (B) nothing in this Section 6.15 shall require cooperation to the extent that it would (x) cause any condition to the Closing set forth in Article VII to not be satisfied or (y) cause any breach of this Agreement, (C) none of ~~▇▇▇▇▇▇~~Sellers, ~~Seller~~ the Companies or ~~any of~~ their respective ~~Affiliates or other Representatives~~ Subsidiaries shall be required to (1) pay any commitment fee or ~~other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur~~ any other ~~expense~~ fees or ~~Liability~~ amounts to the Financing Sources, (2) incur or assume any liability in connection with the financings contemplated by the Financing Letters or the ~~cooperation contemplated by this Section 6.13(d)~~Financing, (ii3) deliver or obtain opinions of internal or external counsel, (4) provide access to or disclose information where Sellers determine that such access or disclosure could jeopardize the attorney-client privilege or contravene any Law or Contract or (5) waive or amend any terms of this Agreement or any other Contract to which any of Sellers, the Companies or their respective Subsidiaries is a party, (D) none of ~~▇▇▇▇▇▇~~the directors of Sellers, ~~Seller~~ the Companies or ~~any of~~ their respective ~~Affiliates or other Representatives~~ Subsidiaries acting in such capacity shall be required to ~~provide~~ execute, deliver or enter into or perform any ~~solvency opinion~~ agreement, document or ~~legal opinion~~ instrument with respect to the Financing or ~~other opinion~~ adopt any resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained, in each case that is not contingent upon the Closing or that would be effective prior to the Closing (and no directors that are not continuing in such capacity after Closing shall be required to execute, deliver or enter into or perform any such agreement, document or instrument), and (E) none of ~~counsel~~Sellers, the Companies or their respective Subsidiaries or their respective officers or employees shall be required to execute, deliver or enter into, or perform any ~~information~~ agreement, document or instrument (other than customary authorization and representation letters) with respect to the Financing that ~~would~~is not contingent upon the Closing or that would be effective prior to the Closing (and no officers or employees that are not continuing in such capacity after Closing shall be required to execute, deliver or enter into or perform any such agreement, document or instrument). To the extent that this Section 6.15(e) requires cooperation with respect to any of the Purchaser’s obligations under the Debt Commitment Letter or relating to the Debt Financing, Sellers, the Companies or their respective Subsidiaries shall be deemed to have complied with this Section 6.15(e) for purposes of Article VII of this Agreement if Sellers, the Companies or their respective Subsidiaries have provided the Purchaser with the assistance required under this Section 6.15(e) with respect to the Debt Commitment Letter and the Debt Financing, in each case without giving effect to any Alternative Financing Commitment Letter or Alternative Financing. For the ~~reasonable opinion~~ avoidance of ~~▇▇▇▇▇▇~~ doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.15(e) represent the sole obligation of Sellers, the Companies and their respective Subsidiaries and their respective directors, officers or ~~Seller, result~~ employees with respect to cooperation in ~~a violation~~ connection with the arrangement of ~~Law~~ the Financing and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or ~~loss of attorney-client privilege,~~ modify such obligations. (~~iii~~f) The Purchaser shall promptly, upon written request by ~~▇▇▇▇▇▇ or Seller~~Sellers, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ Sellers for all reasonable and documented out-of-pocket ~~fees,~~ costs and expenses ~~incurred by any of them~~ (including reasonable and documented attorneys’ ~~fees~~ fees) incurred by Sellers, the Companies and ~~other fees and expenses as incurred)~~ their respective Subsidiaries in connection with the cooperation of Sellers, the Companies and their respective Subsidiaries contemplated by ~~this~~ Section ~~6.13(d~~6.15(e) and shall indemnify and hold harmless ~~▇▇▇▇▇▇~~Sellers, ~~Seller~~ the Companies and their respective Subsidiaries and their respective representatives and Affiliates from and against any and all ~~Liabilities~~ losses, damages, claims, costs or expenses (including reasonable and documented attorney’s fees and expenses) suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith (excluding any and all such losses, damages, claims, costs or expenses that result or arise from bad faith, gross negligence or will misconduct on the ~~cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors~~ part of any of Sellers, the ~~foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of~~ Companies and their respective Subsidiaries and their respective representatives and Affiliates). (g) The Purchaser acknowledges and agrees that obtaining the Financing ~~or execute or deliver any certificate, document, instrument or agreement that~~ is ~~effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior~~ not a condition to the Closing~~. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04~~. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Contribution and Equity Purchase Agreement (McAfee Corp.)

Financing. (a) Purchaser shall use, and ~~Purchaser Parent each~~ shall ~~use~~ cause its Affiliates to use, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and subject only to the conditions ~~described in the Commitment Letter~~ (including the market flex ~~provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~provisions) set forth in the Financing Letters, including using ~~its~~ reasonable best efforts to (i) maintain in effect and comply with the ~~Commitment Letter~~Financing Letters, (ii) promptly negotiate and enter into definitive agreements ~~with respect to~~ providing for the Financing on the terms and subject only to the conditions (including the market flex provisions) ~~contained~~ set forth in the ~~Commitment~~ Financing Letters (or on terms and conditions not materially less favorable (as to the matters that would be prohibited (in an amendment of the Financing Letter) by clause (A), ~~subject~~ (B) or (C) of the next sentence) to ~~any amendments or modifications thereto permitted by Section 6.13(b~~Purchaser than the terms and conditions (including market flex provisions) set forth in the Financing Letters), (iii) satisfy (and cause its Affiliates to satisfy) on a timely basis all conditions applicable to Purchaser or and its Affiliates ~~contained~~ in the ~~Commitment Letter, including~~ Financing Letters and the ~~payment of any commitment, engagement or placement fees required as a condition to~~ definitive agreements providing for the ~~Financing and due and payable by Purchaser or its Affiliates~~Financing, (iv) ~~upon the satisfaction or waiver of such conditions,~~ consummate the Financing on at or prior to the ~~Closing Date~~Closing, including ~~by drawing on any interim or bridge financing facilities contemplated thereby~~using its (and causing its Affiliates to use) reasonable best efforts (which shall include taking all actions reasonably within its control) to cause the Lenders and the other Persons committed to fund the Financing to fund the Financing at the Closing if the conditions to funding set forth in the Financing Letters are satisfied, (v) ~~obtain such third-party consents as may be~~ enforce its rights and remedies (including through taking all actions reasonably ~~required in connection with~~ within its control) under the ~~Financing,~~ Financing Letters and the definitive agreements providing for the Financing and (vi) comply with its covenants and other obligations under the ~~Commitment Letter. If~~ Financing Letters and the definitive agreements providing for the Financing; provided, however, neither this Section 5.25(a) nor any other provision of this Agreement shall be construed to require the Purchaser or ~~Purchaser Parent becomes aware~~ any of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates ~~than the terms and conditions set forth~~ to commence or prosecute any action, litigation, claim, arbitration or other proceeding, at law or in ~~the Commitment Letter and that would not have~~ equity, against any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) Lender or any ~~breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (~~other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Debt Commitment ~~Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of~~ Letter in order to consummate the ~~status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative~~ Debt Financing~~. (b) Notwithstanding anything to the contrary in this Agreement,~~ . Purchaser ~~and Purchaser Parent~~ shall not, without the prior written consent of ~~▇▇▇▇▇▇~~Seller, ~~(i)~~ agree to or permit any ~~termination,~~ termination of or amendment or modification to be made to, or grant any waiver of any provision ~~or remedy~~ under, the ~~Commitment Letter~~ Financing Letters or ~~Fee Letters~~ the definitive agreements providing for the Financing if such termination, amendment, ~~modification~~modification or waiver would (A)(1) reduce (or could have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or the amount of original issue discount) or (2) reduce the amount of the Debt Financing, in either case unless the Equity Financing is increased by a corresponding amount no later than the date of such termination, amendment, modification or waiver such that the aggregate amount of the Financing is sufficient to consummate the Transactions on the Closing Date and, after giving effect thereto, the representations and warranties set forth in Section 4.06 shall be true and correct, (B) impose new or ~~remedy (A) adds new~~ additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions to the Financing, ~~(B) modifies~~ or otherwise expand, amend or modify any ~~existing conditions to~~ other provision of the Financing Letters in a manner that ~~affects~~ could reasonably be expected to delay or prevent or make less likely to occur the ~~consummation of all or any portion~~ funding of the Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ (or the ~~Transactions, (B) reduces the committed amount~~ satisfaction of the conditions to the Financing, ) on the Closing Date or (C) adversely ~~affects in any material respect~~ impact the ability of Purchaser to enforce its rights and remedies against any other ~~parties~~ party to ~~the Commitment~~ any Financing Letter or the definitive agreements ~~in respect thereof~~providing for the Financing. Purchaser shall promptly deliver to Seller copies of any termination, amendment, modification or waiver to or under any Financing Letter or the definitive agreements providing for the Financing. Purchaser will fully pay, or ~~(D) could otherwise reasonably~~ cause to be ~~expected to prevent~~paid, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt all commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing under or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior arising pursuant to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement Debt Commitment Letter as and ~~Section 6.04~~when they become due. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Equity Purchase Agreement (Brunswick Corp)

Financing. (a) Subject to the terms and conditions of this Agreement, Purchaser will and ~~Purchaser Parent each shall~~ will cause MIFSA 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, proper or advisable to arrange and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Debt Commitment Letter and the Debt Fee Letter (including ~~the flex~~ any “flex” provisions related thereto)) on or prior to the Closing Date, ~~subject~~ and will cause MIFSA not to, without the Company’s prior written consent, agree to any ~~amendments~~ amendment or ~~modifications thereto permitted by Section 6.13(b)~~modification to, ~~including using~~ or any waiver of any provision or remedy under, the Debt Commitment Letter or the Debt Fee Letter if such amendment, modification or waiver (i) reduces the aggregate amount of the Bridge Financing to an amount that, together with the Purchaser’s and its Affiliates’ cash on hand or available committed credit facilities, would be less than an amount that would be required to fund the cash payments required to consummate the transactions contemplated hereby, (ii) changes the conditions to obtaining the Bridge Financing or adds new or additional conditions precedent to obtaining the Bridge Financing, unless such amendment, modification or waiver results in conditions that are in the aggregate substantially equivalent to the conditions in the Debt Commitment Letter and the Debt Fee Letter immediately prior to such amendment, modification or waiver (or that are more favorable to the Purchaser and its Affiliates) or (iii) would reasonably be expected to (A) delay or prevent the Closing, (B) make the funding of the Bridge Financing (or satisfaction of the conditions to obtaining the Bridge Financing) less likely to occur or (C) adversely impact the ability of MIFSA or its Affiliates to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided, however, that Purchaser may cause MIFSA to amend or replace the Debt Commitment Letter or the Debt Fee Letter to (i) add lenders, arrangers, bookrunners, syndication agents, managers or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement or (ii) implement or exercise any “flex” provisions provided in the Debt Fee Letter as in effect on the date of this Agreement. Purchaser will cause MIFSA to use its reasonable best efforts to (iI) maintain in effect the Debt Commitment Letter, (iiII) satisfy (or, if deemed advisable by MIFSA, obtain the waiver of, and cause each of its Affiliates to satisfy) on a timely basis all conditions to the Bridge Financing that are within Purchaser and its Affiliates’ control, (III) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions ~~(including the flex provisions)~~ contained in the Debt Commitment ~~Letter, subject to any amendments~~ Letter or ~~modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis~~ consistent in all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection material respects with the ~~Financing,~~ Debt Commitment Letter and the Debt Fee Letter (including any “flex” provisions contained therein) and (viIV) ~~comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion~~ draw a sufficient amount of the Financing ~~reasonably unlikely~~ to ~~occur~~ enable Purchaser to consummate the transactions contemplated hereby, in the ~~manner or from~~ event that the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in Section 3.01 and Section 3.02 and the ~~Commitment Letter and that would not have any~~ conditions to the availability of the ~~effects prohibited pursuant to amendment by Section 6.13(b) (such financing~~Financing have been satisfied or, upon funding, would be satisfied or waived. Upon the ~~“Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates~~ request of the ~~Commitment Letter~~Company or Seller, ~~Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than~~ Purchaser ~~or its Affiliates) of~~ will keep Seller and the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller Company reasonably informed on a reasonably current basis of the status of Purchaser’s and ~~its Affiliates’~~ MIFSA’s efforts to ~~arrange~~ obtain the Financing, including providing Seller with prompt notice of (x) any repudiation, termination or breach of the Debt Commitment Letter by any party thereto, of which Purchaser becomes aware and (y) the occurrence of any other event or development that would reasonably be expected to materially adversely impact the ability of MIFSA to obtain all or any portion of the Financing. Purchaser shall have the right to substitute the proceeds of consummated offerings or other incurrences of debt (including unsecured notes) for all or any portion of the Bridge Financing by reducing commitments under the Debt Commitment Letter; provided, that to the extent any such debt has a scheduled special or ~~Alternative~~ mandatory redemption right, such right is not exercisable prior to the earlier of the consummation of the Closing Transactions on the Closing Date, the termination of this Agreement or the Outside Date (as it may be extended pursuant to this Agreement). Further, Purchaser shall have the right to substitute commitments in respect of other debt financing for all or any portion of the Bridge 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 financing have been satisfied and the conditions precedent to funding of such debt financing are in the aggregate, in respect of certainty of funding, substantially equivalent to (or more favorable to the Purchaser and its Affiliates than) the conditions in the Debt Commitment Letter and the Debt Fee Letter, and (ii) prior to funding of any loans thereunder, the commitments in respect of such debt financing are subject to restrictions on assignment which are in the aggregate substantially equivalent to or more favorable to the Purchaser and its Affiliates than the corresponding restrictions set forth in the Debt Commitment Letter (any such debt financing which satisfies the foregoing clauses (i) and (ii), the “Replacement Financing”; the definitive documentation for any such Replacement Financing, the “Replacement Financing Documents”), of which true, complete and correct copies of such Replacement Financing Documents shall be provided by Purchaser to the Company promptly after such Replacement Financing commitment letter or other Replacement Financing Documents are fully executed. The representations, warranties, covenants and other restrictions of Purchaser contained in this Agreement and any other provisions herein with respect to the Bridge Financing and the Debt Commitment Letter shall apply equally to any Replacement Financing and Replacement Financing Documents. Upon the request of the Company or Seller, Purchaser will keep the Seller and the Company reasonably informed on a reasonably current basis of the status of Purchaser’s efforts to obtain the Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification The Company agrees to, ~~or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions~~ and to ~~the Financing, (B) modifies any existing conditions~~ cause its Subsidiaries to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, provide, such assistance (and to use reasonable best efforts to cause its and its Subsidiaries’ Representatives, to provide such assistance), with the Financing as is customary with Financings of the type contemplated by the Debt Commitment Letter (including the senior notes offering contemplated thereby) and reasonably requested by Purchaser, including: (i) participation in, and assistance with, the marketing efforts related to the Financing, including assisting Purchaser with Purchaser’s preparation of customary confidential information memoranda, private placement memoranda, prospectuses, offering memoranda and other customary marketing materials and information reasonably deemed necessary by the Financing Sources to complete a successful syndication or offering for delivery to potential syndicate members, purchasers and participants; (ii) participation by senior management, Representatives toand advisors of the Company in, ~~provide~~ and assistance with, the preparation of rating agency presentations and meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors (including, for the avoidance of doubt, direct contact with such rating agencies and prospective lenders and debt investors), in each case, at such times as coordinated reasonably in advance thereof; (iii) delivery to Purchaser and its Financing Sources as promptly as reasonably practicable of (A) the documentation and other information requested by the Financing Sources with respect to (x) applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the Foreign Corrupt Practices Act (and, in any event, at least three (3) Business Days prior to the Closing Date, to the extent requested at least nine (9) days prior to the Closing Date), (B) the Financing Information relating to the Company and (C) such ~~cooperation as is~~ other financial information relating to the Company customary or reasonably necessary for the completion of the Financing to the extent reasonably requested by Purchaser in connection with the preparation of customary offering or information documents to be used for the Financing (which financing information, for the avoidance of doubt, may be included in any such offering or information documents used for or distributed in connection with the Financing); (iv) direct its independent auditors to cooperate with the Financing consistent with their customary practice, including by providing customary “comfort letters” (including customary “negative assurances”) and customary assistance with the due diligence activities of Purchaser and its Affiliates and the Financing Sources, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings; (v) assisting Purchaser with Purchaser’s preparation of pro forma financial information and pro forma financial statements for Mallinckrodt plc and its Subsidiaries on a consolidated basis (provided that ~~such requested cooperation does not unreasonably interfere with~~ neither the ~~ongoing operations~~ Company nor any of ~~Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance~~ the Company’s Subsidiaries or Company’s Representatives shall ~~include the following: (i) assisting~~ be responsible in ~~preparation~~ any manner for ~~and participation in customary marketing efforts related~~ information relating to the ~~Financing or the Alternative Financing, as applicable with prospective lenders, investors~~ proposed debt and ~~ratings agencies, (ii~~equity capitalization that is required for such pro forma financial information) ~~assisting Purchaser~~ and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) other materials for rating agency presentations, bank information memoranda (confidential and public), offering or private placement memoranda, lender and investor presentations, prospectuses and financial projections for the Company as part of the consolidated business of Mallinckrodt plc and its Subsidiaries, and not on a stand-alone basis, to the extent reasonably requested by the Financing Sources, and providing customary management and representation letters to its accountants in relation to its accountants’ providing “comfort letters” in connection with any securities offering made as part of the Financing (“Representation Letters”); (vi) executing and delivering definitive financing documents (but excluding, for the avoidance of doubt, authorization letters) necessary and customary in connection with the Financing, including customary pledge and security documents, customary certificates (but not solvency certificates), Representation Letters and other customary documents, to the extent reasonably requested by Purchaser; (vii) otherwise reasonably facilitating the pledging of collateral required to be delivered as a condition precedent to the Financing; and (viii) assisting Purchaser and its Affiliates in causing the conditions precedent set forth in Exhibit C to the Debt Commitment Letter to the Bridge Financing to be satisfied. (c) The Company hereby consents to the use of all 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 reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries; provided, further, that Purchaser, the Financing Sources and their respective affiliates and Representatives shall obtain no rights in such logos. Notwithstanding any other provision set forth herein or in any other agreement between the Company and Purchaser (or its Affiliates), the Company agrees that Purchaser and its Affiliates may share customary projections with respect to the Company and its business with the Financing Sources identified in the Debt Commitment Letter, and that Purchaser, its Affiliates and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality arrangements. Notwithstanding the requirements of Section 10.03(b), (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into or approve any letter, certificate, document, agreement or instrument or approve or consent to resolutions or consents to approve or authorize the Financing, in each case, that will be effective prior to the Closing (other than Representation Letters), (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (iii) ~~furnishing Purchaser and~~ nothing herein shall require Seller to cause the ~~Financing Sources~~ delivery of any legal opinions or any certificate as to solvency by Seller or the ~~Required Information;~~ Company or its Subsidiaries, and (iv) ~~facilitating Purchaser~~nothing herein shall require any officer, director or other representative of the Company or any of the Company’s ~~preparation of documentation with respect~~ Subsidiaries to ~~the pledging of collateral~~deliver any certificate or opinion that such officer, ~~if applicable. In addition~~director or other representative reasonably believes, ~~Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information~~ in ~~a manner that~~good faith, ~~taken as a whole, does not contain~~ contains any untrue ~~statement of a material fact regarding the Purchased Assets~~ certifications or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are madeopinions, as applicable. (d) ~~Notwithstanding~~ Whether or not the ~~foregoing~~Closing occurs, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser ~~shall~~ will promptly, upon request by ~~▇▇▇▇▇▇ or Seller~~the Company, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ the Company for all reasonable and documented out-of-pocket ~~fees,~~ costs and expenses ~~incurred by any of them~~ (including reasonable attorneys’ ~~fees~~ fees) incurred by the Company or any of its Subsidiaries (other than with respect to any costs associated with preparing quarterly and ~~other fees and expenses as incurred~~annual financial statements) in connection with the cooperation of the Company and its Subsidiaries contemplated by ~~this~~ Section ~~6.13(d) and shall~~ 10.03(b). Purchaser will indemnify and hold harmless ~~▇▇▇▇▇▇~~the Company, ~~Seller~~ its Affiliates and their respective ~~Affiliates~~ Representatives from and against any and all ~~Liabilities~~ losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing ~~or the cooperation contemplated by~~ (including any action taken in accordance with this Section ~~6.13(d~~10.03) and ~~(iv) none of ▇▇▇▇▇▇~~any assistance or activities in connection therewith, ~~Seller or their respective Affiliates, or any Persons who are directors of~~ in each case other than to the extent any of the ~~foregoing~~foregoing arises from the bad faith, ~~shall be required to pass resolutions~~ gross negligence or ~~consents to approve~~ willful misconduct of, or ~~authorize the execution~~ breach of ~~the Financing or execute or deliver~~ this Agreement by any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04such Person. (e) In Notwithstanding anything herein to the contrary, in no event shall any failure to obtain any Financing nor any failure to fund any Financing relieve Purchaser of any obligation under or in respect of this Agreement, including the ~~receipt~~ obligation to timely consummate the transactions contemplated by this Agreement as required hereby, and neither the obtaining nor the availability or funding of any Financing shall constitute a condition to Purchaser’s obligation to timely consummate the transactions contemplated by this Agreement as required hereby. Purchaser reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing, ~~Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition~~ subject to ~~any of Purchaser’s or Purchaser Parent’s obligations under this Agreement~~the terms and conditions set forth herein.

Appears in 1 contract

Sources: Stock Purchase Agreement (Mallinckrodt PLC)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser~~ conditions of this Agreement, each of Parent and each ~~shall~~ Merger Sub will not permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Commitment Letters if such amendment, modification or waiver would, or would reasonably be expected to, (i) reduce the aggregate amount of the Financing (other than as expressly set forth therein); (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Financing or any other terms to the Financing in a manner that would reasonably be expected to prevent, impede or materially delay the Closing Date or adversely impact the ability of Parent to consummate the Merger and the other transactions contemplated by this Agreement or (ii) adversely impact the ability of Parent, the Merger Subs or the Company, as applicable, to enforce its rights against the Financing Sources under the Debt Commitment Letter or the Guarantors under the Equity Commitment Letter. (b) Subject to the terms and conditions of this Agreement, each of Parent and each Merger Sub will 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 and advisable to arrange and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment ~~Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Letters, including using its reasonable best efforts to (i) maintain in effect the Commitment ~~Letter~~Letters and the Debt Fee Letters in accordance with the terms and subject to the conditions thereof (or on such other terms as are permitted by Section 6.11 or Section 6.17 or agreed to in writing by the Company), (ii) ~~negotiate and~~ enter into definitive agreements with respect to the ~~Financing~~ Debt Financing, on the terms and conditions ~~(including~~ materially consistent with the ~~flex provisions)~~ terms contained in the Debt Commitment ~~Letter, subject to~~ Letter (including any ~~amendments or modifications~~ “flex” provisions applicable thereto ~~permitted by Section 6.13(b~~set forth in the Debt Fee Letters), (iii) satisfy on a timely basis all conditions to funding that are applicable to ~~Purchaser or its Affiliates contained~~ Parent and the Merger Subs in the Commitment ~~Letter, including the payment~~ Letters that are within their control (except that such obligation shall not be breached in respect of any ~~commitment~~condition where the failure to be so satisfied is a direct result of any of the Company’s failure to furnish the information set forth in Section 6.17, ~~engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates~~notwithstanding Parent’s reasonable best efforts), (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations ~~under~~ pursuant to the Commitment ~~Letter~~Letters and (v) enforce its rights pursuant to the Commitment Letters. ~~If Purchaser~~ In the event that all conditions contained in the Commitment Letters (other than, with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied and Parent is required to consummate the Closing pursuant to Section 1.2, Parent shall use reasonable best efforts to cause each Financing Source and shall cause each Guarantor to fund its respective committed portion of the Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date (including subject to Section 9.10(b), by promptly commencing a litigation proceeding against any breaching Financing Source or ~~Purchaser~~ Guarantor to compel such breaching Financing Source or Guarantor to provide its respective committed portion of the Financing, provided that Parent ~~becomes aware~~ shall control all aspects of ~~any event~~ such proceeding, including litigation strategy and selection of counsel); provided that, notwithstanding the foregoing, it is explicitly agreed that the right of the Parent to seek specific performance or ~~circumstance~~ other equitable remedies in connection with enforcing the Financing Sources’ obligation to cause the Debt Financing to be funded shall be subject to the requirements that ~~makes procurement of~~ (A) the Equity Financing has been funded in accordance with the terms thereof or will be funded in accordance with the terms thereof at the Closing if the Debt Financing is funded at the Closing and (B) Parent has irrevocably confirmed that if the Debt Financing and Equity Financing are funded, then it would take such actions that are within its control to cause the Closing to occur. In addition, Parent shall have the right to substitute other debt financing for all or any portion of the Debt Financing contemplated by the Debt Commitment Letter from the same and/or alternative financing sources so long as (x) such substitution does not, as compared to the Debt Financing contemplated by the Debt Commitment Letter and Debt Fee Letters on the date of this Agreement, increase the amount of Debt Financing required to be funded on the Closing Date to consummate the Merger and the other transactions contemplated by this Agreement, impose new or additional conditions or otherwise expand any of the conditions to the receipt of the Debt Financing in a manner that could reasonably ~~unlikely~~ be expected to ~~occur~~ (1) prevent, delay or impair the ability of Parent to consummate the Merger and the other transactions contemplated by this Agreement or (2) adversely impact the ability of Parent or any Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter and (y) the Company shall have consented in writing to such substituted Debt Financing (such consent not to be unreasonably withheld, conditioned or delayed). (c) In furtherance and not in limitation of the foregoing, in the event that any portion of the Debt Financing becomes unavailable in the manner or from the sources contemplated in the Debt Commitment Letter, ~~Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and~~ Parent shall use its reasonable best efforts ~~to arrange~~ to, as promptly as practicable ~~any~~ following the occurrence of such ~~portion~~ event, (i) obtain alternative financing from alternative sources ~~on terms~~ in an amount sufficient to consummate the Merger and the transactions contemplated by this Agreement upon conditions not ~~materially~~ less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financingParent, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser Merger Subs and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner thatSecond Step Surviving Corporation, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading than those in the ~~light of~~ Debt Commitment Letter (including the ~~circumstances under which such statements are made. (d) Notwithstanding~~ “flex” provisions contained in the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(dDebt Fee Letters), as promptly as practicable following the occurrence of such event (and in any event no later than the Closing Date) (the “Alternate Debt Financing”), and (ii) obtain one or more new financing commitment letters with respect to such Alternate Debt Financing (the “New Debt Commitment Letters”), which New Debt Commitment Letters will replace the existing Debt Commitment Letter in whole or in part. Parent shall promptly provide the Company with a copy of any New Debt Commitment Letters and any fee letter in connection therewith (redacted to omit the numerical amounts and “flex provisions” provided therein and any other customarily redacted provisions thereof, none of ~~▇▇▇▇▇▇~~which would adversely affect the amount, ~~Seller~~ conditionality, availability or termination of the Alternate Debt Financing to be funded at the Closing). In the event that any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilegeNew Debt Commitment Letters are obtained, (~~iii~~A) ~~Purchaser shall promptly~~any reference in this Agreement to the “Financing Commitment Letters” or the “Debt Commitment Letter” will be deemed to include the Debt Commitment Letter to the extent not superseded by one or more New Debt Commitment Letters at the time in question and any New Debt Commitment Letters to the extent then in effect, ~~upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller~~ and ~~their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by~~ (B) any ~~of them (including reasonable attorneys’ fees and other fees and expenses as incurred)~~ reference in ~~connection with~~ this Agreement to the ~~cooperation~~ “Debt Financing” means the debt financing contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the ~~Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of~~ Debt Commitment Letter as modified pursuant to the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Diligent Corp)

Financing. (a) ~~Purchaser and Purchaser~~ From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 9.01, Parent ~~each~~ shall use ~~its~~ commercially reasonable ~~best~~ efforts to take, or cause to be taken, all ~~actions~~ actions, and use commercially reasonable efforts to do, or cause to be done, all things ~~necessary~~reasonably necessary or advisable, ~~proper or advisable~~ to arrange and obtain the Financing as promptly as practicable following the date of this Agreement (taking into account the Marketing Period) and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date. Such actions shall include, but not be limited to, using commercially reasonable efforts to: (i) maintain in effect the Commitment Letters; (ii) satisfy on a timely basis all Financing Conditions to be satisfied by, and within the control of, Parent; (iii) negotiate, execute and deliver Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (including any “market flex” provisions related thereto) or on such other terms acceptable to Parent and its Financing Sources; and (iv) in the event that the conditions set forth in Section 8.01 and Section 8.02 and the Financing Conditions have been satisfied or waived or, upon funding would be satisfied, consummate the Financing (including by ~~drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required~~ instructing the Financing Sources to fund the Debt Financing in ~~connection~~ accordance with the ~~Financing~~Debt Commitment Letter, instructing the Guarantor to fund the Equity Financing in accordance with the Equity Commitment Letter and enforcing Parent’s rights under the Debt Commitment Letter). (vib) ~~comply~~ From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 9.01, Parent shall give the Company prompt notice of any material breach, repudiation or threatened or anticipated material breach or repudiation by any party to any Commitment Letter of which Parent or its Affiliates becomes aware. Without limiting Parent’s other obligations under this Section 7.13, if for any reason all or any portion of the ~~Commitment Letter. If Purchaser~~ Debt Financing becomes unavailable (including, without limitation, as a result of expiration or ~~Purchaser Parent becomes aware of any event or circumstance that makes procurement~~ termination of any portion of the ~~Financing reasonably unlikely to occur~~ commitments set forth in the ~~manner or from the sources contemplated in the~~ Debt Commitment Letter) and the portion of the Financing that remains available is less than the Required Amount, ~~Purchaser~~ then Parent shall (i) promptly notify the Company thereof and the reasons therefor, (~~and in any event within two (2~~ii) ~~Business Days) notify ▇▇▇▇▇▇ and Seller and shall~~ use ~~its~~ commercially reasonable ~~best~~ efforts to ~~arrange~~ obtain alternative financing from alternative Financing Sources (on terms containing no new or additional conditions to the consummation of such financing relative to the Financing Conditions) acceptable to Parent, that, when taken together with the portion of the Financing that remains available, is at least equal to the Required Amount, as promptly as practicable following the occurrence of such event, and (iii) use commercially reasonable 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 subject only to the Financing Conditions; provided that any ~~such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions~~ provisions set forth in ~~the Commitment Letter~~ such new financing commitment relating to fees, “securities demand” provisions, pricing terms and pricing caps, “market flex” provisions and other terms that are customarily redacted (including any dates related thereto) may be redacted, so long as such redaction does not extend to any terms that would ~~not have any~~ reasonably be expected to reduce the aggregate principal amount of such alternative financing to be funded on the ~~effects prohibited pursuant~~ Closing Date or impose additional conditions precedent to ~~amendment by Section 6.13(b) (~~the funding of such ~~financing~~alternative financing on the Closing Date; provided, further, that, notwithstanding anything herein to the ~~“Alternative Financing”). Purchaser~~ contrary, in no event shall commercially reasonable efforts be construed to require that Parent (A) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice~~ pay any fees or original issue discount in excess of ~~(1) any breach or default~~ those contemplated by ~~Purchaser or its Affiliates~~ the Debt Commitment Letter as in effect of the date hereof or (B) agree to pricing or other economic terms that are less favorable (taken as a whole) than those contemplated by the Debt Commitment ~~Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates)~~ Letter as in effect of the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto,~~ date hereof (3in each case of clauses (A) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B~~) upon request~~), ~~otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed~~ assuming the full exercise of any “market flex” provisions in the Debt Commitment Letter). From the date of this Agreement until the earlier of the ~~status~~ Effective Time or the termination of ~~Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary~~ this Agreement in ~~this Agreement, Purchaser and Purchaser Parent shall not~~accordance with Section 9.01, without the prior written consent of ~~▇▇▇▇▇▇~~the Company, ~~(i) permit~~ Parent shall not amend, modify, supplement, restate, assign, substitute or replace any ~~termination, amendment or modification to,~~ of the Commitment Letters or any ~~waiver of any provision or remedy under, the Commitment Letter or Fee Letters~~ Debt Financing Document if such ~~termination,~~ amendment, modification, ~~waiver~~ supplement, restatement, assignment, substitution or ~~remedy~~ replacement would reasonably be expected to (A) ~~adds new~~ impose additional conditions precedent or expand upon (or amend or modify in any manner) the conditions precedent to the funding of the Financing, (B) ~~modifies any existing conditions to~~ reduce the ~~Financing in a manner that affects the consummation of all or any portion~~ amount of the Financing to ~~below a level~~ an amount that ~~would impair Purchaser~~is less than the Required Amount, (C) materially impair, delay or prevent the consummation of the Transactions contemplated to occur under this Agreement on the Closing Date (taking into account the timing of the Marketing Period) or (D) adversely affect Parent’s ability to consummate the Transactions; provided that Parent may, without the prior written consent of the Company, amend, modify, supplement, restate, assign, substitute or replace the Debt Commitment Letter to (1) add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar entities, to provide for the assignment and reallocation of a portion of the financing commitments contained therein and to grant customary approval rights to such additional arrangers and other entities in connection with such appointments, (B2) ~~reduces~~ modify pricing and/or (3) increase the ~~committed~~ aggregate amount of the Debt Financing, ~~(C) adversely affects~~ in ~~any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof~~each case, ~~or (D) could otherwise~~ so long as such amendments would not be reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent the consummation of the ~~Financing~~ Transactions contemplated by to occur under this Agreement on the ~~Commitment Letter~~ Closing Date (taking into account the timing of the Marketing Period) or ~~any Alternative Financing contemplated by any new debt commitment letter. (c) Prior~~ adversely affect Parent’s ability to consummate the ~~Closing~~Transactions. Upon request of the Company, ~~Seller~~ Parent shall keep the Company informed in reasonable detail of the status of ▇▇▇▇▇▇’s efforts to arrange the Financing. Parent and ▇▇▇▇▇▇ ~~shall~~Sub expressly acknowledge and agree that their obligations under this Agreement, ~~at Purchaser’s cost and expense~~including their obligations to consummate the Merger, ~~use reasonable best efforts~~ are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of financing. Any alternative, substitute or replacement debt financing obtained by Parent in accordance with this paragraph is the “Alternative Financing.” For purposes of this Agreement, references to “Debt Financing” shall include the financing contemplated by any Alternative Financing and references to ~~cause its Representatives to~~“Debt Commitment Letter”, ~~provide to Purchaser such cooperation~~ “Debt Fee Letter”, “Debt Financing Documents”, “Financing Sources”, or “Financing” shall include the documents (or commitments or financing sources, as ~~is reasonably requested by Purchaser~~ applicable) in connection with ~~the~~ any Alternative Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicableextent permitted by this Section 7.13, and ~~(B) materials for rating agency presentations, (iii) furnishing Purchaser and the~~ such Alternative Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to ~~pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection~~ comply with the ~~Financing or the cooperation contemplated by~~ provisions of this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior Agreement to the ~~Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to~~ same extent as the ~~Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04~~Debt Financing. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Syneos Health, Inc.)

Financing. (a) ~~Purchaser~~ Buyer shall use commercially reasonable efforts (taking into account the expected timing of the Marketing Period) to take all actions and ~~Purchaser Parent each~~ to do or cause to be done all things necessary, proper or advisable to obtain the proceeds of the Financing on the terms and conditions described in the Financing Letters (provided, that Buyer may (i) amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement or (ii) otherwise replace or amend the Debt Commitment Letter so long as such action would not reasonably be expected to delay or prevent the Closing and the terms are not materially less beneficial to Buyer, with respect to conditionality, than those in the Debt Commitment Letter as in effect on the date of this Agreement). Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Financing Letters without the prior written consent of Seller if such amendment, supplement, modification or waiver: (i) with respect to the Financing Letters, reduces the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to such fees and original issue discount contemplated by the Debt Commitment Letter and related fee letters in effect on the date hereof unless the Debt Financing or the Equity Financing is increased by such amount); (ii) (A) imposes new or additional conditions or (B) otherwise adversely expands, amends or modifies any of the conditions precedent to the Financing, or otherwise expands, amends or modifies any other provision of the Financing Letters, in the case of clause (B), in a manner that would reasonably be expected to prevent or materially delay the ability of Buyer to consummate the Closing on the Closing Date; or (iii) would otherwise materially adversely impact the ability of Buyer to enforce its rights against other parties to the Financing Letters or otherwise to timely consummate the transactions contemplated by this Agreement. Buyer shall promptly deliver to Seller copies of any such amendment, modification, waiver or replacement. For purposes of this Agreement, references to “Financing” or “Debt Financing,” as applicable, shall include the financing contemplated by the Financing Letters as permitted to be amended, modified or replaced by this Section 8.28(a) or 8.28(c), and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 8.28(a) or 8.28(c). (b) Buyer shall use commercially reasonable efforts to: (i) maintain in effect the Financing Letters; (ii) negotiate and enter into definitive agreements and provide Seller with copies of all substantially final drafts of documents with respect to the Debt Financing on the terms and conditions contained in the Debt Commitment Letter (including the “flex” provisions contained in any related fee letter) or on other terms in the aggregate materially no less favorable to Buyer, as to conditionality, than the terms and conditions in the Debt Commitment Letter; provided, that in no event shall any such definitive agreement contain terms (other than those included in the Debt Commitment Letter) that would reasonably be expected to prevent or materially delay the Closing; (iii) satisfy (or, if deemed advisable by Buyer, seek the waiver of) on a timely basis all conditions applicable to Buyer that are within its control as set forth in the Financing Letters and to comply with all of its material obligations pursuant to the Debt Commitment Letter; (iv) upon satisfaction of such conditions, cause the funding of the Debt Financing at or prior to Closing (together with other sources of funds, including the Equity Financing, with respect to amounts required to pay the Required Amounts); and (v) give Seller prompt notice of any material breach by any party to the Debt Commitment Letters of which Buyer has become aware or any termination of any of the Commitment Letters. Buyer shall give the Company prompt notice of any material adverse change with respect to the Financing. Without limiting the foregoing, Buyer agrees to notify Seller promptly if at any time any financing source that is a party to the Debt Commitment Letter notifies Buyer that such source no longer intends to provide financing on the terms set forth therein. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 8.28(b) shall require, and in no event shall the commercially reasonable efforts of Buyer be deemed or construed to require, Buyer or any Affiliate thereof to (i) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Funding Letter or (ii) pay any material fees in excess of those contemplated by the Financing Letters (including pursuant to the “flex” provisions contained in any fee letter relating to the Debt Financing). (c) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter or the Debt Commitment Letter is terminated or modified in a manner materially adverse to Buyer for any reason, Buyer shall promptly notify Seller in writing and shall use its commercially reasonable ~~best~~ efforts to arrange to obtain alternative financing from alternative sources for such portion as promptly as practicable following such event on terms no less favorable to Buyer in any material respect as those contained in the Debt Commitment Letter and in an amount sufficient, together with the Equity Financing and cash on hand of the Acquired Companies, if any, to fund the Required Amount (the “Alternate Financing”) and, if obtained, will provide Seller with a copy of, a new financing commitment that provides for at least the same amount of financing as provided under the Debt Commitment Letter originally issued, to the extent needed to fund the Required Amount, and on terms and conditions (including all terms, termination rights, flex provisions and funding conditions) no less favorable in any material respect to Buyer than those included in the Debt Commitment Letter (an “Alternate Debt Commitment Letter”). Buyer shall use its commercially reasonable efforts (taking into account the expected timing of the Marketing Period) 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~~ arrange promptly and to consummate the Alternate Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in ~~the Commitment Letter (including the flex provisions related thereto), subject to~~ any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Alternate Debt Commitment Letter, including ~~the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable~~ by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply complying with its obligations under clause (b) above as though the references therein to Debt Commitment Letter and Debt Financing were instead references to the Alternate Financing and the Alternate Debt Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, ~~Purchaser~~ Buyer may enter discussions regarding, and ~~Purchaser Parent shall not~~may enter into arrangements and agreements relating to the Financing to add other equity providers, ~~without~~ so long as in respect of any such arrangements and agreements, the ~~prior written consent of ▇▇▇▇▇▇,~~ following conditions are met: (i) ~~permit any termination, amendment or modification to, or any waiver of any provision or remedy under,~~ the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed aggregate amount of the ~~Financing~~Equity Financing is not reduced; (ii) the arrangements and agreements, in the aggregate, would not be reasonably likely to delay or prevent the Closing and (Ciii) the arrangements and agreements would not diminish or release the pre-closing obligations of the parties to the Equity Funding Letter, adversely ~~affects in any material respect~~ affect the ~~ability~~ rights of ~~Purchaser~~ Buyer to enforce its rights against the other parties to the ~~Commitment Letter or the definitive agreements in respect thereof~~Equity Funding Letter, or ~~(D) could~~ otherwise ~~reasonably be expected to prevent, impede~~ constitute a waiver or ~~delay in any material respect~~ reduction of Buyer’s rights under the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letterEquity Funding Letter. (cd) Prior to the ~~Closing~~Closing Date or as expressly provided for in clause (iv) below, Seller ~~and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense,~~ shall use its commercially reasonable ~~best~~ efforts toto provide, and shall cause the Acquired Companies to use commercially reasonable efforts to provide, and shall use commercially reasonable efforts to cause its respective Representatives toto use commercially reasonable efforts to provide, ~~provide~~ to ~~Purchaser~~ Buyer such cooperation as is may be reasonably requested by ~~Purchaser in connection~~ Buyer with respect to the ~~Financing (provided~~ Financing; provided, that such requested cooperation does not ~~unreasonably~~ materially and adversely interfere with the ~~ongoing operations of Seller~~Acquired Company’s business and that any information requested by Buyer is reasonably available to Seller and/or the Acquired Companies. Such cooperation shall include: (i) using commercially reasonable efforts to, ~~▇▇▇▇▇▇~~ as promptly as reasonably practical, (x) furnish Buyer and Buyer’s financing sources and their respective ~~Affiliates). Such assistance~~ Representatives with the Required Information; and (y) inform Buyer if the Company shall ~~include~~ have knowledge of any facts that would likely require the ~~following: (i) assisting in preparation~~ restatement of such financial statements for ~~and participation in customary marketing efforts related~~ such financial statements to ~~the Financing or the Alternative Financing, as applicable~~ comply with ~~prospective lenders, investors and ratings agencies,~~ GAAP; (ii) ~~assisting Purchaser~~ using commercially reasonable efforts to participate in a reasonable number of presentations and due diligence sessions in connection with the ~~Financing Sources in~~ Financing; (iii) using commercially reasonable efforts to assist with the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, ~~(iii) furnishing Purchaser~~ private placement memoranda, offering documents, bank information memoranda and similar documents required in connection with the ~~Financing Sources~~ Financing, including the ~~Required Information;~~ execution and delivery of customary representation letters in connection with bank information memoranda and reviewing and commenting on Buyer’s draft of a business description and “Management’s Discussion and Analysis” of Seller’s financial statements to be included in offering documents contemplated by the Debt Financing; (iv) ~~facilitating Purchaser’s~~ using commercially reasonable efforts to provide Buyer upon request a copy of each semi-annual proved oil and gas reserves report, which may be prepared internally by petroleum engineers who are employees of the Company, for the period ended June 30, 2012 together with audit reports prepared by third-party independent petroleum engineering firms reasonably acceptable to Buyer and the debt financing sources in respect of any such reports prepared as of December 31, 2011, and including consents from such independent petroleum engineering firms to inclusion of such reports in any offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents in connection with the Financing; (A) using commercially reasonable efforts to assist Buyer and its financing sources in obtaining and providing customary accountants’ comfort letters and (B) using commercially reasonable efforts to obtain title information and other documentation and items relating to the Debt Financing, as contemplated by the Debt Commitment Letter or reasonably requested by Buyer and, if requested by Buyer, to cooperate with and assist Buyer in obtaining such documentation and items; (vi) both before the Closing and, to the extent reasonably necessary to allow Buyer or any of its Affiliates to consummate a securities offering or comply with SEC requirements, after the Closing, providing appropriate representations to its accountants in connection with the preparation of financial statements and other financial data of each Acquired Company and requesting accountants’ consents in connection with the use of each Acquired Company’s financial statements in offering documents, prospectuses, Current Reports on Form 8-K and other documents to be filed with the SEC (or similar documents required to be delivered under the terms of the definitive documentation for the Financing); (vii) using commercially reasonable efforts to assist Buyer in connection with ~~respect~~ the preparation of pro forma financial information and financial statements contemplated by the Debt Commitment Letter or to the extent required by SEC rules and regulations or necessary (or reasonably required by Buyer’s financing sources) to be included in any offering documents; provided that Buyer shall have provided Seller or the Acquired Companies with information relating to the proposed debt and equity capitalization that is required for such pro forma financial information in financial reports; (viii) using commercially reasonable efforts to provide monthly management reports for each fiscal month ended on or after September 30, 2012 and at least 30 days before the Closing Date; (ix) using commercially reasonable efforts to execute and deliver as of the Closing any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Buyer and otherwise facilitating the pledging of ~~collateral~~collateral (including cooperation in connection with the pay-off of existing Indebtedness and the release of related Liens and termination of security interest); (x) using commercially reasonable efforts to assist Buyer in obtaining waivers, consents, estoppels and approvals from other parties to material leases, other than rights of way and other encumbrances and contracts to which any Acquired Company is a party and to arrange discussions among Buyer, the Equity Providers and the Debt Providers and their respective Representatives with other parties to material leases, rights of way and other encumbrances and contracts as of the Closing; (xi) taking all commercially reasonable actions necessary to (A) permit the prospective lenders involved in the Debt Financing (through any Debt Provider) and the Debt Providers to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations reasonable and customary for oil and gas industry reserve-based financing and (B) establish bank and other accounts and blocked account agreements and lock box arrangements to the extent necessary in connection with the Debt Financing; (xii) using commercially reasonable efforts to take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Buyer that are necessary or customary to permit the consummation of the Debt Financing, including any high-yield financing, and to permit the proceeds thereof, together with the cash at each Acquired Company, if ~~applicable. In addition~~any (not needed for other purposes), ~~Seller will use its~~ to be made available on the Closing Date to consummate the transactions contemplated by this Agreement; and (xiii) using commercially reasonable ~~best~~ efforts to provide all documentation and other information about the Acquired Companies as is required by applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act to ~~Purchaser and~~ the ~~Financing Sources~~ extent reasonably requested at least five (5) Business Days prior to the ~~Required Information in a manner that~~anticipated Closing Date; provided, ~~taken as a whole~~that no obligation of any Acquired Company, ~~does not contain~~ or any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or Lien on any of their respective ~~Affiliates~~ assets, in connection with the Financing shall be effective until the Closing; no Acquired Company or ~~other~~ any Representatives of any of the foregoing shall be required to pay any commitment or other ~~similar fee, provide any security, execute any document, make any representations, provide any indemnification~~ fee or incur any other ~~expense or Liability~~ liability in connection with the Financing prior to the Closing; and no director or ~~the cooperation contemplated by this Section 6.13(d), (ii) none~~ officer of ~~▇▇▇▇▇▇, Seller or~~ any ~~of their respective Affiliates or other Representatives~~ Acquired Company shall be required to ~~provide~~ execute any ~~solvency opinion~~ agreement, certificate, document or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection instrument with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with respect to the Financing ~~or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall~~ that would be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing~~. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04~~. (e) ~~In no event~~ Seller shall, and shall cause the ~~receipt or availability~~ Company to, use commercially reasonable efforts to periodically update any Required Information provided to Buyer as may be necessary so that such Required Information is (i) Compliant, (ii) meets the applicable requirements set forth in the definition of “Required Information” and (iii) would not, after giving effect to such update(s), result in the Marketing Period to cease to be deemed to have commenced. For the avoidance of doubt, Buyer may, to most effectively access the financing markets, require the cooperation of the ~~Financing~~Company under Section 8.28(d) at any time, ~~Alternative Financing or~~ and from time to time and on multiple occasions, between the date hereof and the Closing; provided that, for the avoidance of doubt, the Marketing Period shall not be applicable as to each attempt to access the markets. Seller shall timely (taking into account any extensions permitted by the applicable SEC rules) file SEC documents and other ~~funds or financing by Purchaser or any of its Affiliates be a condition~~ materials with the SEC to ~~any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.~~t

Appears in 1 contract

Sources: Equity Purchase Agreement (Helix Energy Solutions Group Inc)

Financing. (a) Purchaser shall, and ~~Purchaser Parent each~~ shall cause its Subsidiaries to, use ~~its~~ reasonable best efforts to take, or cause to be taken, all ~~actions~~ actions, and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and to consummate the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment ~~Letter~~ Letters (including the ~~flex provisions related thereto)~~“market flex” provisions, ~~subject to any amendments or modifications thereto permitted by Section 6.13(b)~~if any, set forth in the Fee Letter) as promptly as reasonably practicable following the date hereof, including ~~using its reasonable best efforts to~~ to: (i) maintain in effect the Commitment Letters on the terms and conditions contained therein (including, to the extent the same are exercised, the “market flex” provisions, if any, set forth in the Fee Letter, ) until the transactions contemplated by this Agreement are consummated (it being understood that the Debt Commitment Letter may be replaced or amended as provided below); (ii) negotiate and enter into definitive agreements with respect ~~to the Financing~~ thereto on the terms and conditions contained therein (~~including~~ including, to the ~~flex~~ extent the same are exercised, the “market flex” provisions~~) contained~~ , if any, set forth in the Fee Letter) or on other terms (but not conditions) acceptable to Purchaser and the Debt Financing Sources party to the Debt Commitment ~~Letter, subject~~ Letter and that would not adversely impact the ability of Purchaser to ~~any amendments~~ consummate the transactions contemplated by this Agreement or ~~modifications thereto permitted by Section 6.13(b),~~ reduce the aggregate amount available thereunder; (iii) comply with their respective obligations under the Commitment Letter and satisfy on a timely basis (or obtain a waiver of) all conditions in the Commitment Letter that are in the reasonable control of Purchaser applicable to Purchaser to obtain the Financing; and (iv) enforce its rights under the Commitment Letters and consummate the Financing at or prior to the Closing, including by causing the Debt Financing Sources to fund the Debt Financing at the Closing. (b) Purchaser shall not, and shall cause its ~~Affiliates contained in~~ Subsidiaries not to, permit any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, or assignment of the Debt Commitment Letter or the definitive agreements with respect thereto (such definitive agreements related to the Debt Financing, collectively, with the Debt - 72 - Commitment Letter, the “Debt Documents”) or the Fee Letter, including any such amendment, modification or waiver that (individually or in the ~~payment~~ aggregate with any other amendments, modifications or waivers) would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing under any Debt Document (including by changing the amount of fees to be paid or original issue discount thereof) unless there is a corresponding increase in the Equity Financing) or (ii) impose any new or additional conditions, or otherwise amend, modify or expand any condition, to the receipt of any ~~commitment~~portion of the Debt Financing in a manner that would reasonably be expected to (x) materially delay or prevent the Closing, ~~engagement~~ (y) make the funding of any portion of the Debt Financing (or ~~placement fees required as a~~ satisfaction of any condition to obtaining any portion of the ~~Financing and due and payable by~~ Debt Financing) less likely to occur or (z) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter, the ability of Purchaser to consummate the transactions contemplated hereby or ~~its Affiliates~~the likelihood of the consummation of the transactions contemplated hereby on the Closing Date. In addition to the foregoing, ~~(iv) upon~~ Purchaser shall not release or consent to the ~~satisfaction~~ termination of the Debt Commitment Letter, unless such Debt Commitment Letter is replaced with a new commitment letter for an alternative financing permitted hereunder; provided, however, that, notwithstanding the foregoing, Purchaser may modify, supplement or amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, other agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof or to increase the amount of funds available thereunder. Upon request, Purchaser shall promptly deliver copies of any such material amendment, modification or waiver of the Debt Commitment Letter to Seller. Purchaser will fully pay, or cause to be fully paid, all commitments or other fees arising pursuant to the Debt Commitment Letter as and when they become due. (c) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter and such ~~conditions,~~ portion is required to consummate the ~~Financing~~ transactions contemplated by this Agreement on or prior to the Closing Date, ~~including by drawing~~ or if Purchaser reasonably determines that such funds may become unavailable to Purchaser on ~~any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with~~ the ~~Financing,~~ terms and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letterconditions set forth therein, Purchaser shall as promptly as reasonably practicable following the occurrence of such event (~~and in any event within two (2) Business Days~~i) notify ~~▇▇▇▇▇▇ and~~ Seller ~~and shall~~ in writing thereof; (ii) use ~~its~~ reasonable best efforts to ~~arrange as promptly as practicable any~~ obtain an amount equal to such portion of the Debt Financing from alternative debt financing sources on terms and conditions not materially less favorable to Purchaser or its Affiliates, taken as a whole, than as contemplated by the Debt Commitment Letter (taking into account the “market flex” provisions, if any, set forth in the ~~aggregate~~ Fee Letter) in an amount sufficient to enable Purchaser to consummate the transactions contemplated by this Agreement (it being agreed that, if alternative financing is not reasonably available to Purchaser on such terms and ~~its Affiliates~~ conditions, Purchaser may arrange alternative financing on such other terms and conditions as Purchaser may in good ▇▇▇▇▇ ▇▇▇▇ appropriate); and (iii) use reasonable best efforts to obtain a new financing commitment letter that provides for such alternative financing and, promptly after execution thereof, deliver to Seller true and complete copies of the new commitment letter and the related fee letters (provided, however, that the fee amounts, pricing caps and other economic terms, and the rates and amounts included in any “market flex” provisions (but not covenants), may be redacted, none of which redacted provisions would adversely affect the conditionality or aggregate principal amount of the Financing) and related definitive financing documents with respect to such alternative financing. Notwithstanding anything herein to the - 73 - contrary, in no event shall the foregoing require Purchaser to, and Purchaser shall not be required to, (i) pay any fees in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof or (ii) agree to any terms or conditions less favorable than the terms and conditions ~~set forth~~ of the Debt Commitment Letter (taken as a whole) as in effect on the date hereof (in the reasonable judgment of Purchaser). (d) Purchaser shall, as promptly as reasonably practicable after obtaining knowledge thereof, give Seller written notice of any (i) material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in breach or default) related to the Financing by any party to the Commitment ~~Letter~~ Letters of which Purchaser becomes aware; (ii) if and when Purchaser becomes aware that ~~would not have~~ any portion of the ~~effects prohibited pursuant~~ Financing contemplated by any Commitment Letters may not be available for the Financing purposes; (iii) of the receipt of any written notice or other written communication from any Person with respect to ~~amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall~~ any (A) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach~~ actual or ~~default by Purchaser or its Affiliates of the Commitment Letter~~potential breach, ~~Alternative Financing or definitive financing agreements related thereto~~default, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party ~~of the~~ to any Commitment ~~Letter, Alternative Financing~~ Letter or ~~definitive financing agreements related thereto~~ other Debt Document or (4B) ~~the receipt of notice of any~~ material dispute or disagreement between or among ~~the~~ any parties to any Commitment Letter or other Debt Document with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at the Closing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or Debt Documents); (iv) of any expiration or termination of any Commitment Letter or other Debt Document; or (v) any change, circumstance or event which causes Purchaser to believe in good faith that it shall not be able to timely obtain all or any material portion of the Financing in the amounts or from the sources contemplated by the Commitment ~~Letter, Alternative Financing or definitive financing agreements related thereto,~~ Letters (and ~~(B)~~ that Purchaser will not be able to obtain acceptable alternate financing). Purchaser shall keep Seller informed on a reasonably current basis upon ~~request, otherwise keep ▇▇▇▇▇▇ and~~ request by Seller ~~reasonably informed~~ of the status of ~~Purchaser’s and~~ its ~~Affiliates’~~ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04Letters. (e) ~~In no event shall~~ For the ~~receipt~~ purposes of this Agreement, the definitions of “Debt Commitment Letter,” “Debt Financing” and “Financing” include the Debt Commitment Letter as the same may be amended, waived, modified or ~~availability~~ replaced pursuant to this Section 5.09. (f) Purchaser acknowledges and agrees that the obtaining of the Financing, ~~Alternative~~ or any alternative 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 Financing or any ~~other funds~~ alternative financing, subject to fulfillment or ~~financing by Purchaser or any~~ waiver of ~~its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement~~the conditions set forth in Article VII.

Appears in 1 contract

Sources: Asset Purchase Agreement (Polyone Corp)

Financing. (a) ~~Purchaser and Purchaser~~ (i) Parent ~~each~~ shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain ~~and to consummate~~ the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the ~~Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Debt Financing Commitments, including ~~using its~~ reasonable best efforts to (iA) maintain in effect the ~~Commitment Letter~~Financing Commitments, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iiiB) satisfy on a timely basis all conditions applicable to ~~Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition~~ Parent and Merger Sub to obtaining the Financing ~~and due and payable~~ (including by ~~Purchaser or its Affiliates, (iv) upon~~ consummating the ~~satisfaction or waiver of such conditions, consummate the~~ Equity Financing on at or prior to the ~~Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby~~Closing), (vC) ~~obtain such third-party consents as may be reasonably required in connection~~ enter into definitive agreements with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources respect thereto on ~~terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than~~ the terms and conditions ~~set forth~~ contained in the ~~Commitment Letter~~ Debt Financing Commitments (including any “flex” provisions) and ~~that would not have any of~~ (D) consummate the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach Financing at or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties prior to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Closing. Parent shall not, ~~without the prior written consent of ▇▇▇▇▇▇~~and shall not permit Merger Sub to, ~~(i)~~ agree to or permit any ~~termination~~amendment, ~~amendment~~ supplement or other modification toof, or waive any ~~waiver~~ of ~~any provision or remedy~~ its rights under, ~~the~~ any Financing Commitment ~~Letter~~ or ~~Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions~~ any definitive agreements related to the Financing, in each case, without the Company’s prior written consent (~~B) modifies~~ which consent shall not be unreasonably withheld or delayed), except any ~~existing conditions~~ such amendment, supplement or other modification to the Debt Financing ~~in a manner that affects the consummation of all or any portion of the Financing to below a level~~ Commitments that would ~~impair Purchaser’s ability~~ not involve terms with respect to ~~consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser~~ conditionality that are materially less beneficial to ~~enforce its rights against other parties to the Commitment Letter~~ Parent or ~~the definitive agreements in respect thereof, or (D) could otherwise~~ Merger Sub and would not reasonably be expected to prevent, materially impede or materially delay ~~in any material respect~~ the consummation of the ~~Closing~~ Debt Financing or the ~~Transactions~~transactions contemplated by this Agreement. Upon any such amendment, supplement or ~~(ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation~~ modification of the Debt Financing ~~contemplated by~~ Commitments in accordance with this Section 6.10(a), the ~~Commitment Letter~~ term “Debt Financing Commitments” shall mean the Debt Financing Commitments as so amended, supplemented or ~~any~~ modified in accordance with this Section 6.10(a) and, in the event that Parent obtains Alternative Financing ~~contemplated by any new debt~~ in accordance with this Section 6.10(a), the term “Debt Financing Commitments” shall mean the commitment ~~letter.~~ letter (cas amended, supplemented or modified in accordance with this Section 6.10(a)) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the ~~Financing or the~~ Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Claires Stores Inc)

Financing. 4.5.1 Prior to the Closing, Buyer shall, and shall cause its Affiliates to, not permit any amendment or modification to be made to, or make or permit any waiver of any provision under, the Credit Agreement if such amendment, modification or waiver (a) ~~Purchaser~~ reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing available at the Closing unless Buyer or its Affiliates otherwise have sufficient available resources to perform the obligations required hereunder at the Closing, or (b) imposes new or additional conditions or otherwise expands, amends or modifies any conditions, to the receipt of the Debt Financing, in the case of either clause (a) or (b) above, in a manner that would reasonably be expected to (i) materially delay or prevent or (ii) make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on or prior to the Closing Date. Prior to the Closing, Buyer shall, and ~~Purchaser Parent each~~ shall cause its Affiliates to, refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any of the conditions contained in the Credit Agreement, except that Buyer may amend or replace the Credit Agreement so long as (x) such amendment does not impose terms or conditions that would reasonably be expected to materially delay or prevent the Closing and (y) with respect to replacements, the replacement debt commitments satisfy the terms and conditions of an Alternative Financing set forth below. In the event of such amendment or replacement of the Credit Agreement as permitted by the proviso to the immediately preceding sentence, the financing under such amended or replaced debt commitment will be deemed to be “Debt Financing” as such term is used in this Agreement. During the Pre-Closing Period, Buyer shall not consummate or enter into any definitive agreement to consummate any acquisition or other strategic transaction that requires Buyer to draw any funds available as of the date hereof under the Credit Agreement prior to Closing or that would result in the Debt Financing not being able to be funded at the Closing. 4.5.2 Buyer shall, and shall cause 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, proper or advisable to obtain and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions to funding in the Credit Agreement applicable to ~~Purchaser~~ Buyer to obtain the Debt Financing as promptly as practicable and shall give Seller prompt notice (i) of any material breach or material default (or any event that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material default or material breach) by any party to the Credit Agreement or other definitive agreements related to the Debt Financing of which Buyer or any of its Affiliates ~~contained in~~ become aware, (ii) of the ~~Commitment Letter, including the payment~~ receipt of any ~~commitment~~notice or other communication from any financing source with respect to any (A) actual breach, ~~engagement~~ default, termination or ~~placement fees required as a condition~~ repudiation by any party to the Credit Agreement or other definitive agreements related to the Debt Financing or (B) material dispute or disagreement between or among any parties to the Credit Agreement or other definitive agreements related to the Debt Financing, in each case, with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded on the Closing Date and ~~due and payable by Purchaser~~ (iii) if at any time for any reason Buyer believes in good faith that it will not be able to obtain all or ~~its Affiliates, (iv) upon~~ any portion of the ~~satisfaction or waiver of such conditions, consummate the~~ Debt Financing on ~~or prior to~~ the Closing Date; provided that in no event will Buyer be under any obligation to disclose any information that is subject to attorney-client or other established legal privilege if Buyer shall have used its reasonable best efforts to disclose such information in a way that could not waive such privilege. As soon as reasonably practicable, ~~including~~ following the date on which Seller delivers to Buyer a written request therefor, Buyer shall provide any information reasonably requested by ~~drawing on~~ Seller relating to any ~~interim or bridge financing facilities contemplated thereby~~circumstance referred to in clauses (i), (vii) ~~obtain such third-party consents as may be reasonably required in connection with~~ or (iii) of the ~~Financing, and (vi) comply with its obligations under the Commitment Letter~~immediately preceding sentence. If ~~Purchaser~~ any portion of the Debt Financing becomes unavailable or ~~Purchaser Parent~~ Buyer becomes aware of any event or circumstance that ~~makes procurement of~~ would reasonably be expected to make any portion of the Debt Financing ~~reasonably unlikely to occur~~ unavailable, and on the material terms and conditions contemplated by the Credit Agreement (as modified in accordance with the ~~manner or from the sources contemplated in the Commitment Letter~~terms hereof), ~~Purchaser shall~~ (i) Buyer will promptly ~~(and in any event within two (2) Business Days)~~ notify ~~▇▇▇▇▇▇ and~~ Seller and ~~shall~~ (ii) Buyer will use its reasonable best efforts to arrange ~~as promptly as practicable any such portion~~ and obtain in replacement thereof alternative financing from alternative sources on in an amount sufficient to consummate the transactions contemplated by this Agreement at the Closing with terms and conditions not materially less ~~favorable in the aggregate~~ favorable, taken as a whole, to ~~Purchaser~~ Buyer and ~~its Affiliates~~ Seller than the terms and conditions set forth in the ~~Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b)~~ Credit Agreement (~~such financing, the~~ “Alternative Financing”)) as promptly as practicable following the occurrence of such event. ~~Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of~~ In such event, (1) ~~any breach or default by Purchaser or its Affiliates of~~ the ~~Commitment Letter,~~ term “Debt Financing” will be deemed to include the Alternative ~~Financing or definitive financing agreements related thereto~~Financing, (2) the term “Credit Agreement” will be deemed to include any ~~known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing~~ commitment letters or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties documentation entered into pursuant to the ~~Commitment Letter~~terms thereof with respect to any such alternative debt financing. 4.5.3 During the Pre-Closing Period, ~~Alternative Financing or definitive financing agreements related thereto~~Seller shall, and ~~(B) upon request~~shall cause its Affiliates to, ~~otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’~~ use their respective commercially reasonable efforts to ~~arrange the Financing~~ provide or ~~Alternative Financing. (b) Notwithstanding anything~~ cause to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts toprovided, and to cause ~~its~~ their respective Representatives toto provide or cause to be provided, ~~provide~~ to ~~Purchaser such~~ Buyer, in each case, at Buyer’s sole expense, all cooperation ~~as is~~ reasonably requested by ~~Purchaser in connection with~~ Buyer that is necessary to consummate the Debt Financing (~~provided that~~ in each case, so long as such requested cooperation does not unreasonably interfere with the ongoing operations of ~~Seller~~Seller and its Affiliates) and causing the conditions in the Credit Agreement to be satisfied, ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ including in (i) ~~assisting in preparation for~~ preparing and ~~participation in customary marketing efforts related~~ furnishing to Buyer and the Financing Sources as promptly as practicable all information and disclosures relating to the ~~Financing or the Alternative Financing,~~ Product Business as ~~applicable with prospective lenders, investors and ratings agencies~~may be reasonably requested by Buyer, (ii) ~~assisting Purchaser and~~ facilitating the ~~Financing Sources in the preparation~~ pledging of ~~(A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents~~ collateral for the ~~Financing or the Alternative~~ Debt Financing, ~~as applicable,~~ effective upon and ~~(B) materials for rating agency presentations~~subject to the occurrence of the Closing, (iii) ~~furnishing Purchaser~~ obtaining from Seller’s and its Affiliates’ existing lenders such consents, approvals, authorizations and instruments which may be reasonably requested by Buyer in connection with the Debt Financing ~~Sources~~ and collateral arrangements, including customary payoff letters, lien releases, instruments of termination or discharge, all effective upon and subject to the ~~Required Information;~~ occurrence of the Closing, and (iv) ~~facilitating Purchaser’s preparation~~ cooperating with Buyer to satisfy the conditions precedent to the Debt Financing to the extent within the control of ~~documentation~~ Seller or its Affiliates, provided, however, that (a) none of Seller or any of its Affiliates shall have any Liability in connection with any cooperation provided pursuant to this Section 4.5.3 (including for costs or expenses that are not reimbursed in full by Buyer prior to the Closing), (b) none of Seller or any of its Affiliates shall be required pursuant to this Section 4.5.3 to prepare or cause its Representatives to prepare any financial statements with respect to the ~~pledging of collateral~~Product Business, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or ~~the Triage Business~~ Assumed Liabilities not otherwise prepared by Seller or ~~omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading~~ its Affiliates in the ~~light~~ ordinary course as of the ~~circumstances under which such statements are made.~~ Execution Date, and (~~d) Notwithstanding the foregoing, (i~~c) none of ~~▇▇▇▇▇▇,~~ the Seller or any of ~~their respective~~ its Affiliates ~~or other Representatives~~ shall be required to ~~pay~~ (x) issue or cause to be issued any ~~commitment~~ legal opinions or ~~other similar fee~~account’s comfort letters or (y) take any action (A) under any certificate, ~~provide~~ document or instrument relating to the Debt Financing that is not contingent upon the Closing (including the entry into any ~~security~~agreement that is effective before the Closing), ~~execute~~ (B) that would reasonably be expected to cause any ~~document~~director, ~~make any representations~~officer, ~~provide any indemnification~~ or employee of the Seller or its Affiliates to incur ~~any other expense or Liability~~ personal liability in connection with the ~~Financing~~ Debt Financing, (C) that would conflict with or violate its organizational documents or violate applicable Laws, or (D) that would cause any condition to the Closing to fail to be satisfied or otherwise cause a material breach of this Agreement. Buyer shall, promptly upon request by Seller, reimburse, or cause its Affiliates to reimburse, Seller for Seller’s and its Affiliates’ reasonable and documented out-of-pocket costs and expenses incurred by Seller and its Affiliates in connection with such cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) 4.5.3 and shall indemnify and hold harmless ~~▇▇▇▇▇▇~~Seller, ~~Seller~~ its Affiliates and their respective Representative, in each case, acting on behalf of Seller or its Affiliates ~~from~~ for and against any and all ~~Liabilities~~ Losses suffered or incurred by any of them in connection with the Debt Financing (including any action taken in connection with this Section 4.5.3), except to the extent such Losses result from the gross negligence or willful misconduct of Seller, its Affiliates or its Representatives. The obligations of Buyer in the ~~cooperation~~ foregoing sentence shall survive the consummation of the transactions contemplated by this ~~Section 6.13(d)~~ Agreement and ~~(iv) none~~ the termination of ~~▇▇▇▇▇▇,~~ this Agreement. 4.5.4 All non-public information provided by or on behalf of Seller or its Affiliates to Buyer, its Affiliates or its Representatives pursuant to this Section 4.5 or otherwise in connection with the Debt Financing is subject to the terms of Section 5.4. 4.5.5 Notwithstanding anything to the contrary contained in this Agreement, each Party: (a) agrees that it will not bring or support any Person in any action, suit, proceeding, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any sources of Debt Financing (which for the purposes of this provision shall include the lenders under the Credit Agreement and all other sources of Debt Financing and their respective Affiliates, equityholders, members, partners and Representatives involved in the financing contemplated by the Credit Agreement) in any way relating to this Agreement or ~~any Persons who are directors of~~ any of the ~~foregoing~~transactions contemplated by this Agreement, including any dispute arising out of or relating in any way to the Credit Agreement or the performance thereof or the financings contemplated thereby, in any forum other than the federal and state courts located in Delaware; (b) agrees that, except as specifically set forth in the Credit Agreement, all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any sources of Debt Financing in any way relating to any of the Credit Agreement or the performance thereof or the financings contemplated thereby, shall be ~~required to pass resolutions or consents to approve or authorize~~ exclusively governed by, and construed in accordance with, the ~~execution~~ Laws of the ~~Financing~~ State of Delaware, without giving effect to principles or ~~execute~~ rules or ~~deliver any certificate, document, instrument or agreement that is effective prior~~ conflict of laws to the ~~Closing~~ extent such principles or ~~agree~~ rules would require or permit the application of laws of another jurisdiction; and (c) hereby irrevocably and unconditionally waives any right such Party may have to ~~any change or modification~~ a trial by jury in respect of any ~~existing certificate~~litigation (whether in law or in equity, ~~document, instrument~~ whether in contract or ~~agreement that is effective prior~~ in tort or otherwise) directly or indirectly arising out of or relating in any way to the ~~Closing~~Credit Agreement or the performance thereof or the financings contemplated thereby. ~~Any information provided~~ Notwithstanding anything to ~~Purchaser~~ the contrary contained in this Agreement, (x) the Seller, and its respective Affiliates, Representatives, partners, managers, members or ~~its Affiliates pursuant~~ stockholders shall not have any rights or claims against any source of Debt Financing, in any way relating to this ~~Section 6.13(d) shall be subject to the Confidentiality~~ Agreement ~~and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser~~ or any of ~~its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under~~ the transactions contemplated by this Agreement., or in respect of any, or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Credit Agreement or the performance thereof or the financings contemplated thereby, whether at law or equity, in contract, in tort or otherwise and

Appears in 1 contract

Sources: Asset Purchase Agreement (Aralez Pharmaceuticals Inc.)

Financing. (a) ~~Purchaser~~ Buyer shall, and ~~Purchaser Parent each~~ shall cause its Affiliates to, use ~~its~~ commercially reasonable ~~best~~ efforts to take, or cause to be taken, all ~~actions~~ appropriate action and to do, or cause to be done, all things 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 required, to obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ as promptly as reasonably practicable on the terms ~~and conditions described in the Commitment Letter~~ (including the ~~flex provisions related thereto)~~“market flex” provisions) and subject only to the conditions contained in the Financing Commitments (and, ~~subject~~ if applicable in the case of the Alternate Financing, only those conditions specified in the Financing Commitments as being applicable to ~~any amendments or modifications thereto permitted by Section 6.13(b~~the Alternate Financing), including ~~using its reasonable best efforts~~ to (i~~) maintain in effect the Commitment Letter, (ii~~) negotiate and enter into definitive agreements with respect to the Financing on the terms ~~and conditions~~ (including the ~~flex~~ “market flex” provisions) and subject only to the conditions contained in the ~~Commitment Letter~~Financing Commitments (and, ~~subject~~ if applicable in the case of the Alternate Financing, only those conditions specified in the Financing Commitments as being applicable to the Alternate Financing) or on other terms acceptable to Buyer so long as such definitive agreements (A) do not contain any ~~amendments~~ additional or ~~modifications thereto permitted by Section 6.13(b~~modified conditions or other contingencies to the funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement (and, if applicable in the case of the Alternate Financing, only those conditions specified in the Financing Commitments as of the date of this Agreement as being applicable to the Alternate Financing), (~~iii~~B) ~~satisfy~~ are in a form that is otherwise not reasonably likely to impair or delay the funding of the Financing or the Principal Closing and (C) do not reduce the aggregate amount of the Financing set forth in the Financing Commitments as of the date of this Agreement (or, if applicable in the case of the Alternate Financing, reduce the aggregate amount of Financing contemplated by the Alternate Financing Commitments as set forth in the Financing Commitments as of the date of this Agreement), (ii) satisfy, and cause its Subsidiaries to satisfy, on a timely basis all conditions applicable to ~~Purchaser~~ Buyer or its ~~Affiliates~~ Subsidiaries contained in the ~~Commitment Letter~~Financing Commitments (or, ~~including~~ if applicable in the ~~payment~~ case of the Alternate Financing, those conditions contained in the Alternate Financing Commitments) and (iii) consummate the Financing contemplated by the Financing Commitments (or the Alternate Financing Commitments, if applicable) at the Principal Closing. Buyer shall, and shall cause its Subsidiaries to, refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any ~~commitment~~of the conditions contained in the Financing Commitments (or the Alternate Financing Commitments, ~~engagement~~ if applicable) or ~~placement fees required~~ in any definitive agreement related to the Financing. Without limiting the generality of the foregoing, Buyer shall not have drawn more than $600,000,000 under the revolving credit facility under the Existing Credit Agreement (as defined in the Financing Commitments) as of the Closing (without giving effect to any amounts drawn to fund the Cash Consideration). (b) For the avoidance of doubt and notwithstanding anything to the contrary in this Section 6.06, Buyer acknowledges and agrees that its obligation to consummate the Transactions on the terms and subject to the conditions set forth herein are not conditioned upon the availability or consummation of the Financing, the availability of any replacement commitments or receipt of the proceeds therefrom and, accordingly, the parties hereto agree that a ~~condition~~ failure of Buyer to close the Transactions due to the failure or inability to consummate the Financing constitutes a breach of this Agreement. (c) Buyer shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Financing Commitments (or the Alternate Financing Commitments, if applicable) or the definitive agreements relating to the Financing ~~and due and payable by Purchaser or its Affiliates~~except (i) with Seller’s prior written consent, which consent shall not be unreasonably withheld, (ivii) ~~upon~~ to the ~~satisfaction~~ extent such modification or waiver is not materially adverse to Seller or (iii) to add additional Financing Sources who had not executed the Financing Commitments as of the date hereof and amend the allocation of economics or other related terms with respect to the existing and additional Financing Sources, provided that, in the case of clauses (ii) and (iii), such amendment, supplement, modification or waiver does not (A) reduce the aggregate amount of any portion 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 Financing Commitments on the date hereof unless the Financing is increased by a corresponding amount), (B) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing in a manner that could reasonably be expected to materially delay or prevent the funding of the Financing (or satisfaction of the conditions to the Financing) at the Principal Closing or (C) adversely impact the ability of Buyer or any of its Affiliates to enforce its rights against the other parties to the Financing Commitments (or the Alternate Financing Commitments) or the definitive agreements with respect to the Financing. (d) If any portion of the Financing becomes unavailable on the terms and conditions (including the “market flex” provisions) contained in the Financing Commitments (or the Alternate Financing Commitments, if applicable), Buyer shall promptly notify Seller, and Buyer shall, and shall cause its Affiliates to, use commercially reasonable efforts to obtain, as promptly as practicable following the occurrence of such ~~conditions~~event, replacement commitments on terms that will enable Buyer to consummate the Transactions and that are not less favorable in the aggregate to Buyer than those contained in the Financing on Commitments; provided that such replacement commitments shall not (i) be subject to any additional or ~~prior~~ modified conditions or other contingencies to the ~~Closing Date~~funding of the Financing other than those contained in the Financing Commitments or (ii) otherwise be reasonably likely to impair or delay the funding of the Financing or the Principal Closing. Buyer shall deliver to Seller complete and correct copies of all amendments, supplements, other modifications or agreements (including ~~by drawing on~~ Redacted Fee Letters) pursuant to which any ~~interim~~ amended, supplemented, modified or ~~bridge financing facilities contemplated thereby~~replacement commitments shall provide Buyer with any portion of the Financing. (e) Seller shall, ~~(v) obtain such third-party consents~~ and shall cause its Affiliates to, and shall cause its and their employees to, use commercially reasonable efforts to provide, and shall direct its and their accountants, legal counsel, other advisors and representatives to use commercially reasonable efforts to provide, all cooperation in connection with the arrangement of the Financing as may be reasonably requested by Buyer, including delivering to Buyer the Marketing Financial Information and using commercially reasonable efforts to (i) deliver to Buyer (A) the financial information described in Schedule 6.06(e) by the dates indicated on Schedule 6.06(e) and (B) by the date that is fifteen (15) calendar days after the last day of each calendar month, a statement of sales with respect to the Business on a monthly basis consistent with such financial information previously provided to Buyer by Seller, (ii) upon reasonable notice, cause Employees of the Business to participate in a reasonable number of meetings and presentations with prospective lenders and investors, and sessions with the ratings agencies contemplated by the Financing Commitments, (iii) reasonably assist Buyer and the Financing Sources in their preparation of (A) any bank information memoranda and related lender presentations, and similar documents required in connection with the Financing, and (B) materials for rating agency presentations (provided that Buyer acknowledges and agrees that no such memoranda, documents, presentations or other materials prepared in connection with the Financing may include any report or opinion of Seller’s independent auditors or otherwise include any reference to Seller’s independent auditors), (iv) reasonably assist Buyer in connection with the preparation of any pledge and security documents and other definitive financing documents as may be reasonably requested by Buyer or the Financing Sources (including using reasonable best efforts to obtain title and lien searches) and otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Financing, (v) provide Buyer all documentation and other information with respect to Seller and its Subsidiaries as shall have been reasonably requested in writing by Buyer at least ten (10) business days prior to the Principal Closing Date that is required in connection with the Financing by U.S. regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent required under the Financing Commitments and applicable to Seller and its Subsidiaries, and (vi) ~~comply~~ provide executed authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors 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 Seller or its Subsidiaries or securities and executing ratings agency engagement letters as required in connection with the Financing (provided, that Seller shall not be required to pay any cost or expenses relating to rating agency engagement letters). Notwithstanding the foregoing, (i) such requested cooperation shall not unreasonably interfere with the ongoing operations of Seller and its ~~obligations~~ Affiliates and (ii) in connection with such requested cooperation, Seller and its Affiliates shall not be required to provide any financial statements or financial information in respect of the Business other than the Marketing Financial Information, and to use commercially reasonable efforts to provide to Buyer (A) the financial information described in Schedule 6.06(e) by the dates indicated on Schedule 6.06(e) and (B) by that date that is fifteen (15) calendar days after the last day of each calendar month, a statement of sales with respect to the Business on a monthly basis consistent with such financial information previously provided to Buyer by Seller. Buyer shall, promptly upon request by Seller, reimburse Seller for all out-of-pocket costs incurred by Seller or any of its Affiliates in connection with such cooperation. In the event that Buyer is provided with any report or opinion of Seller’s independent auditors, Buyer shall not provide such report or opinion or any portion thereof to any of the Financing Sources unless such Financing Sources have executed and delivered to Seller and Seller’s independent auditors an acknowledgment substantially in the form previously provided to Buyer. Buyer and its Affiliates shall, on a joint and several basis, indemnify and hold harmless Seller and its Affiliates from and against any Damages suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith. Seller shall have the right to consent to the use of the Transferred Trademarks (but not any other trademarks or logos of Seller or any of its Affiliates) in connection with the Financing (which consent shall not be unreasonably withheld, conditioned or delayed); provided nothing in this sentence shall restrict Buyer from using Seller trademarks in a descriptive manner to describe the Transactions. (f) Buyer shall keep Seller informed on a timely basis of the status of the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Buyer shall give Seller prompt notice of (i) any default or breach (or any event that, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach) by any party under the ~~Commitment Letter. If Purchaser~~ Financing Commitments (or ~~Purchaser Parent~~ any Alternate Financing Commitment, if applicable) or the definitive agreements relating to the Financing of which Buyer becomes ~~aware~~ aware, (ii) any termination of the Financing Commitments (or any Alternate Financing Commitment, if applicable), (iii) the receipt of any ~~event~~ written notice or ~~circumstance~~ other written communication from any Person party to a Financing Commitment (or any Alternate Financing Commitment, if applicable) with respect to any (x) actual or potential default, breach, termination or repudiation of any Financing Commitment (or any Alternate Financing Commitment, if applicable), any definitive agreement relating to the Financing or any provision of the Financing Commitments (or the Alternate Financing Commitments, if applicable), in each case by any party thereto, or (y) material dispute or disagreement between or among any parties to any Financing Commitment (or any Alternate Financing Commitment, if applicable), with respect to the obligation to fund the Financing, including any condition with respect to the obligation to fund the Financing, or the amount of Financing to be funded at the Principal Closing Date, and (iv) if for any reason Buyer believes in good faith that ~~makes procurement of~~ it will not be able to obtain all or any portion of the Financing ~~reasonably unlikely to occur~~ on the terms, in the manner or from the sources contemplated in by the ~~Commitment Letter~~Financing Commitments (or the Alternate Financing Commitments, ~~Purchaser shall promptly (~~if applicable). As soon as reasonably practicable, and in any ~~event~~ event, within two (2) ~~Business Days) notify ▇▇▇▇▇▇ and~~ business days after the date Seller ~~and~~ delivers to Buyer a written request, Buyer shall ~~use its reasonable best efforts~~ provide any information reasonably requested by Seller relating to ~~arrange as promptly as practicable~~ any ~~such portion from alternative sources on terms and conditions not materially less favorable~~ circumstance referred to in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) clause (~~such financing, the “Alternative Financing”~~i). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2ii), (iii) ~~any known breach~~ or ~~default by any party~~ (~~other than Purchaser or its Affiliates~~iv) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financingimmediately preceding sentence. (bg) ~~Notwithstanding anything~~ Buyer acknowledges that the information being provided to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser it in connection with the Financing is subject to the terms of Section 6.05. With respect to information disclosed to any rating agency (~~provided that~~ the “Confidential Rating Agency Information”), Buyer shall inform such ~~requested cooperation does not unreasonably interfere with~~ rating agency of the ~~ongoing operations~~ confidential nature of ~~Seller, ▇▇~~the Confidential Rating Agency Information and ▇▇▇▇ ~~and their respective Affiliates). Such assistance shall include the following: (i) assisting~~ any such information provided in ~~preparation for and participation in customary marketing efforts related~~ writing to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for such rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicableas “confidential”. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives Buyer shall be ~~required to pay~~ responsible for any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by breach of this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred covenant by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04such rating agency. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Asset Purchase Agreement (Integra Lifesciences Holdings Corp)

Financing. (ai) ~~Purchaser and Purchaser~~ Parent ~~each~~ shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be ~~done,~~ done all things ~~necessary~~necessary to arrange, ~~proper or advisable to~~ obtain and to consummate the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment ~~Letter~~ Letters (including the ~~flex~~ exercise of so-called “flex” provisions in the related ~~thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b~~fee letter) as promptly as practicable (taking into account the timing of the Marketing Period), including using ~~its~~ reasonable best efforts to (i) maintain in full force and effect the Commitment ~~Letter,~~ Letters until consummation of the Transactions (iiexcept that Parent may agree to any modification or amendment of the Commitment Letters solely as permitted pursuant to Section 6.5(b)(iii)) and to negotiate and ~~enter into~~ execute definitive agreements with respect to the Financing on the terms ~~and conditions (including the flex provisions)~~ contained in the Commitment ~~Letter~~Letters (including any “flex” provisions applicable thereto) or on terms that are no less favorable, ~~subject~~ in any material respect, to Parent than the terms contained in the Commitment Letters (including any ~~amendments~~ “flex” provisions applicable thereto), in each case which terms shall not in any adverse respect change, expand or ~~modifications thereto permitted by Section 6.13(b~~impose new conditions to the funding of the Financing at the Closing or reduce the aggregate amount of the Financing available to be funded on the Closing Date or materially affect the timing of the Closing Date (the “Financing Agreements”), (~~iii~~ii) satisfy on a timely basis (taking into account the timing of the Marketing Period) all conditions ~~applicable to Purchaser or its Affiliates contained~~ in the Commitment ~~Letter, including the payment of any commitment, engagement or placement fees required as a condition~~ Letters and such Financing Agreements which are in their control and to ~~the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions,~~ consummate the Financing on at or prior to the ~~Closing Date~~Closing, (iii) enforce their rights under the Commitment Letters and the Financing Agreements including by ~~drawing on any interim or bridge financing facilities contemplated thereby~~taking enforcement action to cause the Financing Sources, ~~(v) obtain such third-party consents as may be reasonably required in connection with~~ lenders and other Persons committing to provide the ~~Financing, and (vi)~~ Financing to comply with ~~its~~ their obligations under the Commitment ~~Letter~~Letters and the Financing Agreements and to fund such Financing at Closing; provided, however, that Parent shall not be required to take any such enforcement action unless all conditions precedent set forth in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that, by their nature, are to be satisfied at the Closing) and (iv) comply with their obligations in all material respects under the Commitment Letters and the Financing Agreements. ~~If Purchaser or Purchaser~~ Parent ~~becomes aware~~ shall keep the MLP Entities and the ▇▇▇▇▇▇▇▇▇ Entities reasonably informed with respect to any material developments concerning the status of the Financing. Parent shall provide the MLP Entities and the ▇▇▇▇▇▇▇▇▇ Entities, upon reasonable request, with copies of any ~~event or circumstance that makes procurement of any portion of~~ primary material Financing Agreements and such other material information and documentation regarding the Financing as shall be reasonably ~~unlikely~~ necessary to ~~occur in~~ allow the ~~manner or from~~ MLP Entities and the ~~sources contemplated in~~ ▇▇▇▇▇▇▇▇▇ Entities to monitor the ~~Commitment Letter, Purchaser~~ progress of such financing activities. (ii) Parent shall promptly (and in any event ~~within two~~ no later than three (23) Business ~~Days~~Days after becoming aware thereof) notify the MLP Entities and the ▇▇▇▇▇▇▇▇▇ ~~and Seller and shall use its reasonable best efforts~~ Entities in writing (i) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to ~~arrange as promptly as practicable~~ give rise to any ~~such portion from alternative sources on terms and conditions not materially less favorable in the aggregate~~ material breach or default) by any party to ~~Purchaser and its Affiliates than the terms and conditions set forth in~~ the Commitment ~~Letter and that would not have~~ Letters or Financing Agreements of which the Parent Entities become aware, (ii) of the receipt by the Parent Entities or any of ~~the effects prohibited pursuant~~ their controlled Affiliates or Representatives of any written notice or other written communication from any Financing Source, any lender or any other Person with respect to ~~amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall~~ any (A) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach~~ actual, threatened or ~~default by Purchaser or its Affiliates of the Commitment Letter~~alleged breach, ~~Alternative Financing or definitive financing agreements related thereto~~default, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party to the Commitment Letters or any Financing Agreement (including any proposal by any Financing Source, lender or other Person to withdraw, terminate or reduce the amount of the Financing below the amount contemplated by the Commitment ~~Letter, Alternative Financing or definitive financing agreements related thereto~~ Letters) or (4B) ~~the receipt of notice of any~~ material dispute or disagreement between or among ~~the~~ any parties to the Commitment ~~Letter, Alternative~~ Letters or any Financing ~~or definitive financing agreements related thereto, and~~ Agreement (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇other than ordinary course negotiations), (iiii) ~~permit~~ if for any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions reason Parent believe in good faith that it will not be able to ~~the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of~~ obtain all or any portion of the Financing on the terms contemplated by the Commitment Letters or the Financing Agreements and (iv) of the termination or expiration of the Commitment Letters or any Financing Agreement. As soon as reasonably practicable, after the MLP Entities or the ▇▇▇▇▇▇▇▇▇ Entities deliver to ~~below~~ Parent a ~~level that~~ written request, Parent shall provide any information reasonably requested by the MLP Entities or the ▇▇▇▇▇▇▇▇▇ Entities relating to any of the circumstances referred to in this Section 6.5(b)(ii). (iii) Parent shall not permit or consent to any amendment, supplement, modification or waiver to be made to the Commitment Letters if such amendment, supplement, modification or waiver would ~~impair Purchaser’s ability~~ (A) change, expand or impose new conditions precedent to ~~consummate~~ the ~~Transactions~~funding of the Financing from those set forth therein on the date hereof, (B) ~~reduces~~ materially delay the ~~committed amount~~ funding of the ~~Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter~~ Financing thereunder or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent ~~consummation~~ the availability of ~~the Financing contemplated by the Commitment Letter~~ all or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations a portion of ~~Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to~~ the Financing or the ~~Alternative Financing~~consummation of the Transaction, (C) reduce the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount of the Financing (except as ~~applicable with prospective~~ set forth in any flex provisions existing on the date hereof)) unless additional sources are then made available to finance such increase in fees or original issue discount or (D) otherwise adversely affect the ability of the Parent Entities to consummate the Transactions or materially delay the timing of the Closing (collectively, the “Restricted Commitment Letter Amendments”) (except that subject to the limitations set forth in this Section 6.5(b)(iii), Parent may replace, modify, supplement or amend the Commitment Letters to add lenders, ~~investors and ratings agencies~~lead arrangers, ~~(ii) assisting Purchaser and~~ bookrunners, syndication agents or similar entities that have not executed the ~~Financing Sources~~ Commitment Letters as of the date hereof, so long as such replacement, modification, supplement or amendment would not result in the ~~preparation~~ occurrence of ~~(A)~~ a ~~customary offering document~~Restricted Commitment Letter Amendment). For purposes of this Agreement, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect references to the ~~pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken~~ “Commitment Letters” shall include such documents as ~~a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets~~ permitted or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section ~~6.13(d)~~6.5(b)(iii) to be amended, ~~(ii) none of ▇▇▇▇▇▇, Seller~~ modified or ~~any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would~~waived, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates each case from and ~~against any and all Liabilities incurred by any of them in connection with the Financing~~ after such amendment, modification or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04waiver. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Purchase Agreement (Arc Logistics Partners LP)

Financing. (a) Purchaser and Purchaser Parent each 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 obtain and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as ▇▇▇▇▇ agrees that it is not a condition to the ~~Financing and due and payable~~ Closing or to any of its other obligations under this Agreement that it obtains financing for, or related to, any of the transactions contemplated by ~~Purchaser or its Affiliates~~this Agreement. Concurrently with the execution of this Agreement, ~~(iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior~~ ▇▇▇▇▇ has provided to the ~~Closing Date~~Sellers true and complete copies of (a) the executed commitment letter (including all exhibits, ~~including by drawing on any interim or bridge financing facilities contemplated thereby~~schedules, joinders and annexes (vin each case, if any) ~~obtain such third-party consents~~ thereto, as each of the foregoing may be ~~reasonably required~~ amended, supplemented, replaced, substituted, terminated or otherwise modified or waived from time to time after the date hereof in ~~connection~~ compliance with Section 4.12, the “Debt Commitment Letter” and, together with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Equity Commitment Letter, ~~Purchaser shall promptly (~~the “Commitment Letters”) by and ~~in any event within two (2) Business Days) notify ▇~~between ▇▇▇▇▇ and ~~Seller~~ the Debt Financing Sources party thereto, pursuant to which the lenders and ~~shall use its reasonable best efforts~~ other Persons party thereto have committed, subject to ~~arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than~~ the terms and conditions set forth therein, to provide to Buyer debt financing in the ~~Commitment Letter and that would not have any of~~ amounts set forth therein (the ~~effects prohibited pursuant to amendment by Section 6.13(b) (such financing~~“Debt Financing” and, together with the Equity Financing, the “~~Alternative~~ Financing”)) and (b) the executed Equity Commitment Letter. ~~Purchaser shall (A) give ▇~~Concurrently with the execution of this Agreement, ▇▇▇▇▇ has also provided to the Sellers a true and ~~Seller prompt oral~~ complete copy of any fee letter related to the Debt Commitment Letter (it being understood that any such fee letter provided to Sellers may be redacted to the extent necessary to omit the amount of any fees, pricing terms, pricing flex, pricing caps and ~~written notice~~ other commercially sensitive terms that are customarily redacted in connection with transactions of ~~(1) any breach~~ this type so long as such redacted terms would not reasonably be expected to adversely affect the conditionality, enforceability, availability or ~~default by Purchaser~~ termination, or ~~its Affiliates~~ reduce the aggregate amount of the ~~Commitment~~ Debt Financing) (any such fee letter, the “Fee Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing”). (b) ~~Notwithstanding anything~~ None of the Commitment Letters or the Fee Letter has been amended or modified prior to the ~~contrary in~~ date of this Agreement, ~~Purchaser~~ and ~~Purchaser Parent shall not~~to the Knowledge of Buyer, ~~without~~ as of the ~~prior written consent of ▇▇▇▇▇▇,~~ date hereof (i) ~~permit any termination,~~ no such amendment or modification ~~to, or any waiver of any provision or remedy under,~~ is contemplated and (ii) the commitments contained in the Commitment Letters have not been withdrawn, terminated or rescinded in any respect. The Equity Commitment Letter provides, and will continue to provide, that each of the Sellers are third-party beneficiaries thereof and are entitled to enforce such agreement. As of the date of this Agreement, there are no side letters or ~~Fee Letters if such termination~~other agreements, ~~amendment, modification, waiver~~ contracts or ~~remedy~~ arrangements that would reasonably be expected to (Ai) ~~adds new conditions~~ affect the availability or conditionality to the ~~Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion~~ funding of the Financing or (ii) reduce the aggregate amount of the available Financing to ~~below~~ less than the amount necessary to fund the Required Funding Amount on the Closing Date. As of the date hereof, each of the Commitment Letters and the Fee Letter is in full force and effect and is a ~~level that would impair Purchaser’s ability~~ legal, valid and binding obligation of Buyer and, to ~~consummate~~ the ~~Transactions~~Knowledge of Buyer, the other parties thereto (~~B) reduces~~ including, in the ~~committed~~ case of the Equity Commitment Letter, the Sponsor), enforceable against Buyer and such other parties, as applicable, in accordance with its terms, subject to the Enforceability Exceptions. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, ~~(C) adversely affects~~ other than as expressly set forth in ~~any material respect the ability of Purchaser to enforce its rights against other parties to~~ this Agreement and in the Commitment ~~Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation~~ Letters. As of the ~~Closing~~ date hereof, no event has occurred which, with or ~~the Transactions~~without notice, lapse of time or ~~(ii) undertake any merger~~both, ~~acquisition, joint venture, disposition, lease, Contract~~ would or ~~debt or equity financing that~~ could reasonably be expected to ~~materially impair~~constitute a default or breach on the part of Buyer or the Sponsor under either of the Commitment Letters, ~~delay~~ and, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 Buyer has no reason to believe that it will be unable to satisfy on a timely basis any term or ~~prevent consummation~~ condition to funding to be satisfied by it contained in the Commitment Letters and any related Fee Letter. International Paper - Business Use 26 (c) Assuming the Closing is consummated in accordance with the terms of this Agreement following the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Buyer has no reason to believe the full amount of the Financing contemplated by the Commitment ~~Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior~~ Letters will not be available to Buyer at the Closing. Assuming satisfaction of the conditions set forth in Section 6.1 and Section 6.2, the funds provided pursuant to the ~~Closing~~Commitment Letters, ~~Seller~~ if funded in accordance with the terms thereof, will be sufficient for Buyer to have at the Closing funds sufficient to pay (A) the Estimated Closing Cash Purchase Price and ~~▇▇▇▇▇▇ shall~~any other amount required to be paid by Buyer pursuant to Section 1.2 on the Closing Date, (B) any amount payable pursuant to Section 1.3(g)(ii) on the date such amount, if any, is payable by Buyer and (C) all fees and expenses required to be paid by Buyer at ~~Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser~~ the Closing in connection with the ~~Financing~~ transactions contemplated hereby (~~provided that such requested cooperation does not unreasonably interfere with~~ collectively, the ~~ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates~~“Required Funding Amount”). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Securities Purchase Agreement (International Paper Co /New/)

Financing. (ai) Schedule 4.3(b)(i) sets forth a true and complete list of the equity commitment letters executed as of the date of this Agreement by Purchaser and ~~Purchaser Parent each shall use its reasonable best efforts~~ the sources of equity named therein (the “Existing Equity Commitment Letters” and the sources of such equity the “Existing Equity Financing Sources”), pursuant 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 and to consummate~~ which the Existing Equity Financing ~~(or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto)~~Sources have committed, subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Existing Equity Commitment ~~Letter and that would not have any of the effects prohibited pursuant~~ Letters, to ~~amendment by Section 6.13(b~~provide to Purchaser (directly or indirectly) equity financing (~~such financing,~~ the “~~Alternative~~ Existing Equity Financing”), in each case for the purposes of funding the transactions contemplated by this Agreement and related fees and expenses and, to the extent applicable, the Purchaser’s post-Closing operations. Purchaser ~~shall (A) give ▇▇▇▇▇▇~~ has delivered to Seller true and ~~Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates~~ complete copies of the Existing Equity Commitment ~~Letter, Alternative Financing or definitive financing agreements related thereto,~~ Letters (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice subject to redaction of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financingfees set forth therein). (bii) ~~Notwithstanding anything to the contrary~~ The Financing Commitment Letters have not been amended, modified, supplemented, terminated or withdrawn in ~~this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit~~ any ~~termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if~~ way. No such ~~termination,~~ amendment, modification, ~~waiver~~ supplement, termination or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as withdrawal is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates)contemplated. Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents Except for the Financing ~~or the Alternative Financing~~Commitment Letters, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements there are ~~made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates~~ no Contracts or other ~~Representatives shall be required~~ understandings (whether oral or written) or commitments to ~~pay any commitment~~ enter into Contracts or other ~~similar fee, provide any security, execute any document, make any representations, provide any indemnification~~ understandings (whether oral or ~~incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii~~written) ~~none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required~~ to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by which Purchaser or any of its Affiliates is a party related to the Financing other than as expressly contained in the Financing Commitment Letters. Any and all commitment fees or other fees in connection with the Financing Commitment Letters that are payable on or prior to the date hereof have been paid by or on behalf of Purchaser. (iii) The Financing Commitment Letters are (A) the legal, valid and binding obligation of Purchaser and, to Purchaser’s knowledge, each of the other parties thereto, (B) enforceable in accordance with their terms against Purchaser and, to Purchaser’s knowledge, each of the other parties thereto, subject to the Enforceability Limitations, and (C) in full force and effect. No event has occurred that, with or without notice, lapse of time, or both, would or would reasonably be expected to constitute a ~~condition~~ default or breach under any Financing Commitment Letter on the part of Purchaser, or, to Purchaser’s knowledge, any of ~~Purchaser’s~~ the other parties thereto, or result in the failure of any condition precedent under any Financing Commitment Letter to be satisfied. Purchaser ~~Parent’s obligations under this Agreement~~has no reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing will not be made available to Purchaser as of the Closing. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing (including any subsequent approval) other than as expressly set forth in the Financing Commitment Letters, and the Financing Commitment Letters do not provide that the parties thereto may impose additional conditions or other contingencies to such funding. In addition, the Equity Commitment Letters expressly provide that Seller is an intended third-party beneficiary thereof to the extent provided therein and that, subject to the terms hereof and thereof, Seller will have the right to specifically enforce or cause the enforcement of the provisions thereof to the extent provided herein and therein.

Appears in 1 contract

Sources: Asset Transfer Agreement (Lordstown Motors Corp.)

Financing. (a) Purchaser and Purchaser Parent each 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 obtain and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent Buyer shall not, without the prior written consent of ~~▇▇▇▇▇▇~~Seller (which shall not be unreasonably withheld), ~~(i)~~ permit any ~~termination,~~ amendment or modification to be made to, or any waiver of any provision or remedy ~~under~~pursuant to, the Debt Commitment Letter ~~or Fee Letters~~ if such ~~termination,~~ amendment, ~~modification~~modification or waiver would (i) reduce the aggregate amount of the Debt Financing below that required to provide the Buyer with the funds necessary for it to consummate the Contemplated Transactions at the Closing and to perform its obligations under this Agreement, ~~waiver~~ unless the Equity Financing is increased by an equivalent amount or ~~remedy~~ due to a reduction in the Base Purchase Price; (Aii) ~~adds~~ impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing, ~~(B) modifies any existing conditions to the Financing~~ in each case, in a manner that ~~affects the consummation of all~~ would reasonably, when taken as a whole, be expected to delay or ~~any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects~~ prevent in any material respect the ability of ~~Purchaser~~ Buyer to consummate the Contemplated Transactions or (iii) materially and adversely impact the ability of Buyer to enforce its rights against the other parties to the Debt Commitment Letter. Notwithstanding the foregoing, assignments consummated pursuant to the terms of the Debt Commitment Letter are permitted. For the avoidance of doubt, Buyer may amend, supplement, modify or replace the ~~definitive agreements~~ Debt Commitment Letter as in effect at the date hereof, (1) as expressly permitted by Section 3.22(c) below or (2) in any manner consistent with the immediately preceding sentence, including, (x) as required pursuant to the market flex provisions in the fee letter, (y) to add or replace lenders, lead arrangers, bookrunners, syndication agents or other parties (for the avoidance of doubt, providing additional or replacement lenders, lead arrangers, bookrunners, syndication agents or similar entities with consent rights with respect ~~thereof~~to existing conditions shall not constitute the addition, expansion, amendment or modification of any condition of the Debt Financing), (x) to increase the amount of indebtedness, or (Dy) ~~could otherwise reasonably~~ to add or replace facilities with one or more new facilities. For purposes of this Section 3.22, references to “Debt Commitment Letter” shall include such documents as permitted to be ~~expected~~ amended, modified or replaced by this Section 3.22. (b) Buyer shall use reasonable best efforts to ~~prevent, impede or delay in any material respect~~ obtain the ~~consummation~~ proceeds of the ~~Closing or~~ Debt Financing on the ~~Transactions~~terms and conditions described in the Debt Commitment Letter, or including using commercially reasonable efforts to (i) maintain in effect the Debt Commitment Letter; (ii) ~~undertake any merger~~negotiate, ~~acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected~~ execute and deliver definitive agreements with respect to ~~materially impair, delay or prevent consummation of~~ the Debt Financing contemplated by the Debt Commitment Letters on the terms and conditions contemplated by the Debt Commitment Letters (or on other terms acceptable to Buyer so long as such other terms do not (A) reduce the aggregate amount of the Debt Financing set forth in the Debt Commitment Letter (except as permitted by clause (a) above), (B) impose new or additional conditions or otherwise expand, amend or modify any ~~Alternative~~ of the conditions to the receipt of the Debt Financing ~~contemplated by~~ in a manner that, in either case, would reasonably be expected materially to (1) delay, impair, impede, reduce or prevent or make less likely in any ~~new debt commitment letter~~respect the Closing or (2) make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing less likely to occur or (C) adversely impact the ability of Buyer to enforce its rights against the other parties to the Debt Commitment Letters); (iii) taking into account the expected timing of the Marketing Period, satisfy on a timely basis all conditions to funding that are applicable to Buyer in the Financing Letters and/or definitive agreements for the Debt Financing that are within its reasonable control and (iv) upon satisfaction of the conditions set forth in the Debt Commitment Letter and this Agreement, consummate the Debt Financing at or prior to Closing. (c) ~~Prior~~ If any portion of the Debt Financing becomes unavailable, the Buyer shall use its reasonable efforts to arrange alternative financing from the same or other sources of financing on terms and conditions (including the flex provisions) no less favorable to the ~~Closing~~Buyer than those contained in (or expressly permitted with respect to) the Financing Commitments and in an amount sufficient for the Buyer to perform its obligations under this Agreement (it being agreed that, ~~Seller~~ if alternative financing is not reasonably available to the Buyer on such terms and ▇conditions, the Buyer may arrange alternative financing on such other terms and conditions as the Buyer may in good ▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ ~~and their respective Affiliates~~appropriate). ~~Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related~~ Notwithstanding anything herein to the ~~Financing or~~ contrary, in no event shall the ~~Alternative Financing~~foregoing require the Buyer to, ~~as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser~~ and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does Buyer shall not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoingbe required to, (i) ~~none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to~~ pay any ~~commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability~~ fees materially in ~~connection with~~ excess of those contemplated by the Financing Commitments as in effect on the date hereof or ~~the cooperation contemplated by this Section 6.13(d),~~ (ii) ~~none of ▇▇▇▇▇▇, Seller~~ agree to any terms or ~~any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would,~~ conditions materially less favorable in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller aggregate than the terms and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution conditions of the Financing ~~or execute or deliver any certificate~~Commitments and fee letters as in effect on the date hereof; provided, ~~document~~further, ~~instrument or agreement~~ that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In in no event shall the ~~receipt~~ Buyer be required (A) to amend or ~~availability~~ waive any of the ~~Financing, Alternative Financing~~ terms or conditions hereof or (B) to consummate the Closing any ~~other funds or financing~~ earlier than as required by ~~Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement~~Section 3.2.

Appears in 1 contract

Sources: Purchase Agreement (Chicago Bridge & Iron Co N V)

Financing. (a) Purchaser ~~and Purchaser Parent each~~ 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~~ (after taking into account the timing of the Marketing Period) to obtain the Equity Financing and ~~to consummate~~ the Debt Financing (or, in the event any portion or ~~any Alternative~~ all of the Debt Financing becomes unavailable, alternative debt financing in an amount sufficient, together with the remaining Debt Financing, if any, and the Equity Financing, to fund the Required Amount from the same or (to the extent permitted by applicable Law) other banks or similar financial institutions, on ~~the~~ terms and conditions ~~described~~ (including market flex provisions) not less favorable to Purchaser than those terms contained in the Debt Commitment Letter (~~including~~ such portion from such sources other than any source providing the ~~flex provisions related thereto~~Debt Financing contemplated by the Debt Commitment Letter as of the date hereof, the “Alternate Financing”)), ~~subject to any amendments or modifications thereto permitted~~ by ~~Section 6.13(b),~~ the Closing Date including using its reasonable best efforts to to: (i) ~~maintain~~ negotiate and execute definitive agreements on the terms and subject only to the conditions contained in ~~effect~~ the Commitment ~~Letter~~Letters (or on other terms that, ~~(ii) negotiate and enter into definitive agreements~~ with respect to ~~the Financing on~~ conditionality, are not less favorable to Purchaser than the terms and conditions (including the market flex provisions) ~~contained~~ set forth in the Debt Commitment ~~Letter~~Letter so long as such other terms would not (and would not reasonably be expected to) have any result, ~~subject~~ event or consequence described in any of clauses (i) or (ii) of Section 5.16(c)), which, with respect to any ~~amendments or modifications thereto permitted~~ bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Debt financing; (ii) after taking into account the timing of the Marketing Period, satisfy (or, if deemed advisable by ~~Section 6.13(b)~~Purchaser, ~~(iii~~obtain a waiver of) ~~satisfy~~ on a timely basis all conditions applicable to Purchaser or in the Commitment Letters and the definitive agreements for the Debt Financing and the Equity Financing that are within its ~~Affiliates~~ control; (iii) after taking into account the Marketing Period, consummate the Debt Financing and Equity Financing on the terms (including the market flex provisions) and subject only to the conditions contained in the Commitment ~~Letter~~Letters (or on other terms that, with respect to conditionality, are not less favorable to Purchaser than the terms and conditions (including the ~~payment~~ market flex provisions) set forth in the Debt Commitment Letter so long as such other terms would not (and would not reasonably be expected to) have any result, event or consequence described in any of ~~any commitment~~clauses (i) or (ii) of Section 5.16(c)), ~~engagement or placement fees required as a condition~~ including, subject to the satisfaction of the conditions set forth in the Commitment Letters, by causing the Debt Financing Sources and ~~due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of~~ Equity Finance Providers to provide such ~~conditions, consummate the~~ Financing on or prior to the date on which the Closing ~~Date, including by drawing on any interim or bridge financing facilities contemplated thereby,~~ is required to occur pursuant to Section 2.3; (iv) comply with and maintain in effect the Commitment Letters; and (v) ~~obtain such third-party consents as may~~ in the event that the conditions set forth in Section 7.1, Section 7.2 and in the Commitment Letters have been satisfied or, upon funding, would be ~~reasonably required in connection with the Financing~~satisfied, ~~and (vi) comply with~~ enforce its ~~obligations~~ rights under the Commitment ~~Letter~~Letters (including, for the avoidance of doubt, by instituting litigation in respect thereof). (b) Purchaser shall keep Sellers informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and Equity Financing. If Purchaser shall give Sellers prompt notice (which shall be no later than two Business Days) upon (i) becoming aware of, or ~~Purchaser Parent becomes aware~~ receiving written notice or other written communication with respect to, any material breach of or material default under, or any event or circumstance that ~~makes procurement~~ (with or without notice, lapse of time or both) could reasonably be expected to give rise to any material breach of or material default under, any Commitment Letter or any definitive agreement relating to the Debt Financing or the Equity Financing by a party thereto or any termination, withdrawal or rescission of any Commitment Letter or any definitive agreement relating to the Debt Financing or the Equity Financing; (ii) the occurrence of an event or development that could reasonably be expected to adversely impact the ability of Purchaser to obtain all or any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Debt Financing or ~~definitive financing agreements related thereto~~Equity Financing necessary to fund the Required Amount; (iii) receiving any written communications from any Person with respect to any actual, ~~(2) any known breach~~ potential or ~~default by any party (other than Purchaser or its Affiliates) of the Commitment Letter~~threatened breach, ~~Alternative Financing or definitive financing agreements related thereto~~default, ~~(3) any purported~~ termination or repudiation by any party of to the Commitment ~~Letter, Alternative~~ Letters or any definitive document related to the Debt Financing or ~~definitive financing agreements related thereto or~~ Equity Financing; (4iv) ~~the receipt of notice of~~ any material dispute or disagreement between or among ~~the~~ any parties to the Commitment ~~Letter, Alternative~~ Letters that would reasonably be expected to adversely impact the ability of Purchaser to obtain all or any portion of the Debt Financing of the Equity Financing necessary to fund the Required Amount; or (v) any Debt Financing Source or Equity Finance Provider refuses to provide or expresses (in writing) an intent to refuse to provide all or any portion of the Debt Financing or ~~definitive financing~~ Equity Financing contemplated by the Commitment Letters on the terms set forth therein. Purchaser shall promptly deliver to Sellers true and complete copies of all agreements ~~related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed~~ pursuant to which any alternative source shall have committed to provide Purchaser with any portion of ~~the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative~~ any Alternate Financing. (bc) ~~Notwithstanding anything to the contrary in this Agreement,~~ Purchaser ~~and Purchaser Parent~~ shall not, without the prior written consent of ~~▇▇▇▇▇▇~~the Sellers, ~~(i)~~ permit any ~~termination,~~ amendment or modification to be made to, or any waiver of any provision ~~or remedy~~ under, the Debt Commitment Letter or ~~Fee Letters~~ any Equity Commitment Letter if such ~~termination,~~ amendment, ~~modification~~modification or waiver: (i) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Debt Financing and the Equity Financing to an amount below the amount necessary to fund the Required Amount; or (ii) imposes new or additional conditions precedent or otherwise adversely expands, ~~waiver~~ amends or ~~remedy (A) adds new~~ modifies any of the conditions precedent to the ~~Financing~~committed financing under either Commitment Letter, ~~(B) modifies any existing conditions to the Financing~~ in a manner that ~~affects~~ would, in the ~~consummation~~ case of ~~all~~ this subsection (ii), reasonably be expected to prevent or ~~any portion~~ materially delay the Closing or the availability of the Debt Financing or the Equity Financing in an amount necessary to ~~below a level that would impair Purchaser’s ability to consummate~~ fund the ~~Transactions, (B) reduces~~ Required Amount on the ~~committed amount of the Financing, (C)~~ Closing Date or adversely ~~affects in any material respect~~ impact the ability of Purchaser to enforce its rights against the other parties to the applicable Commitment Letter ~~or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay~~ in any material respect (provided that, Purchaser may amend the ~~consummation~~ Debt Commitment Letter to add additional lenders, arrangers and agents thereunder). Purchaser shall promptly deliver to Sellers copies of ~~the Closing or the Transactions~~any such amendment, modification, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letterreplacement. (cd) Prior to the Closing, ~~Seller and ▇▇▇▇▇▇~~ Sellers shall, ~~at Purchaser’s cost~~ and ~~expense~~shall cause the Acquired Subsidiaries to, use their commercially reasonable ~~best~~ efforts ~~to, and~~ to cause ~~its Representatives~~ their representatives to, provide ~~to Purchaser~~ such cooperation that is necessary and customary or as is may be reasonably requested by Purchaser to assist Purchaser in the arrangement of the Debt Financing, including using commercially reasonable efforts in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: with: (i) assisting in preparation for and reasonable participation (and making senior management of Sellers and the Business available to participate) in marketing efforts, including participation in ~~customary marketing efforts related to the Financing or the Alternative Financing~~a reasonable number of lender meetings and calls, ~~as applicable~~ other meetings, calls, drafting sessions, rating agency presentations, road shows, and due diligence sessions (including accounting due diligence sessions) and a reasonable number of sessions with prospective lenders, investors and ratings agencies, in each case upon reasonable advance notice and at mutually agreeable dates, times and locations, and assisting Purchaser in obtaining ratings as contemplated by the Debt Financing; (ii) assisting Purchaser and the ~~Financing Sources~~ Lenders in the timely preparation of (A) ~~a customary~~ offering ~~document~~documents, private placement ~~memorandum and/or~~ memoranda, bank information ~~memorandum~~ memoranda, lender presentations, investor presentations and similar marketing documents for the ~~Financing or the Alternative~~ Debt Financing, ~~as applicable,~~ including reviewing and commenting on Purchaser’s draft of a business description and “Management’s Discussion and Analysis” of the financial statements to be included in offering documents contemplated by the Debt Financing; and (B) materials for rating agency presentations, ; (iii) authorizing the distribution of information to prospective lenders and investors and containing a customary representation to the Lenders and prospective lenders contemplated by the Debt Commitment Letter, including that the public side versions of such documents do not include material non-public information about Sellers, the Acquired Subsidiaries, the Business or any of their respective subsidiaries or their securities and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing; (iv) as promptly as practicable (A) furnishing Purchaser and the ~~Financing Sources~~ Lenders and their respective representatives with the Required ~~Information;~~ Financing Information that is Compliant and (ivB) ~~facilitating~~ informing Purchaser if any of the Sellers or any Acquired Subsidiary (or the chief executive officer, chief financial officer, treasurer or controller of any of the Sellers or any Acquired Subsidiary or any member of such Sellers or Acquired Subsidiary’s board) shall have Knowledge of any facts as a result of which a restatement of any financial statements to comply with GAAP is probable or under consideration; (v) assisting Purchaser and the Lenders in connection with Purchaser’s preparation of ~~documentation~~ pro forma financial information and pro forma financial statements to the extent required by SEC rules and regulations or necessary or reasonably required by Purchaser or Purchaser’s financing sources (including the Lenders (or their respective appropriate affiliates) (provided that none of the Sellers nor any Acquired Subsidiary or their respective representatives shall be (A) required to prepare any such pro forma financial statements, prepare projections or any other forward looking information covering any period after the Closing; or (B) responsible for information relating to the proposed debt and equity capitalization that is required for such pro forma financial information); (vi) request and facilitate the independent auditors of the Business to (A) provide, consistent with customary practice, (x) customary auditors consents and customary comfort letters (including “negative assurance” comfort and change period comfort) as reasonably requested by Purchaser or as necessary or customary for financings similar to the Debt Financing and (y) reasonable assistance to Purchaser in connection with Purchaser’s preparation of pro forma financial statements and information and (B) attend a reasonable number of accounting diligence sessions and drafting sessions; (vii) executing and delivering as of (but not before) the Closing any credit agreements, indentures, supplemental indentures, pledge and guarantees and security documents, other definitive financing documents, currency or interest rate hedging arrangements, or other certificates or documents as may be reasonably requested by Purchaser (including a certificate of the chief financial officer of the Sellers with respect to solvency matters in the form set forth in the Debt Commitment Letter) and otherwise facilitating the pledging of ~~collateral~~collateral and the granting of guarantees and security interests in respect of the Debt Financing (including cooperation in connection with the pay-off of, ~~if applicable~~or release from, existing Indebtedness to the extent contemplated by this Agreement and the release of related guarantees, Liens and termination of related security interests); and (viii) (A) providing at least five (5) Business Days prior to the Closing Date all documentation and other information as is required by applicable “know your customer” and anti-money laundering rules and regulations in connection with the Debt Financing, including the USA PATRIOT Act, and the requirements of 31 C.F.R. §1010.230, and (B) cooperating reasonably with the Lenders’ due diligence, to the extent customary and reasonable. Notwithstanding anything to the contrary contained herein, nothing in this Section 5.16(d) shall require such cooperation to the extent it would: (i) unreasonably disrupt the conduct of the business or operations of Sellers or any of their Affiliates; (ii) require Sellers or any of their Affiliates to disclose information subject to any attorney-client, attorney work product or other legal privilege (provided, that the Sellers shall use commercially reasonable efforts to allow the disclosure of such information (or as much of it as reasonably possible) in a manner that does not result in a loss of attorney client (or other legal) privilege); (iii) require Sellers or any of their Affiliates to agree to pay any fees or reimburse any expenses that are not reimbursed by the Purchaser prior to the Closing or otherwise incur any liability or give any indemnities; (iv) require Sellers or any of their Affiliates to take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, any Organizational Document of Sellers or any of their Affiliates, any applicable Laws or any material Contract, or subject any director, manager, officer or employee of any Seller or Acquired Subsidiary to any actual or potential personal liability; (v) require Sellers to implement the Restructuring Transactions or any element thereof prior to the date that Seller elects in its sole discretion to complete such action or actions; (vi) cause any condition to the Closing set forth in Article 7 to not be satisfied; or (vii) cause any covenant, representation or warranty in this Agreement to be breached by the Sellers or any of its Affiliates. In addition, ~~Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain~~ nothing herein shall require Sellers or any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the ~~circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller~~ Acquired Subsidiaries or any of their ~~respective Affiliates or other Representatives shall be required~~ representatives to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), deliver legal opinions. (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iiie) Purchaser shall promptly, upon request by ~~▇▇▇▇▇▇ or Seller~~Sellers, (i) reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ Sellers for all reasonable and documented out-of-pocket ~~fees,~~ costs and expenses ~~incurred by any of them~~ (including reasonable attorneys’ ~~fees and other fees and expenses as incurred~~fees) incurred by Sellers or any of their Affiliates in connection with the cooperation contemplated by this Section ~~6.13(d~~5.16, and (ii) ~~and~~ shall indemnify and hold harmless ~~▇▇▇▇▇▇~~Sellers, ~~Seller~~ their Affiliates and their respective ~~Affiliates~~ representatives from and against any and all Liabilities suffered or incurred by any of them in connection with their cooperation in the arrangement of the Debt Financing and any information used in connection therewith, except with respect to subsection (ii): (1) any information provided in writing by Sellers, any Acquired Subsidiary or any of their Affiliates or representatives; or (2) any gross negligence, fraud, intentional misrepresentation or willful misconduct by any such Persons. (f) To the ~~cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates~~extent Purchaser obtains Alternate Financing, or ~~any Persons who are directors of~~ amends, replaces, supplements, modifies or waives any of the ~~foregoing~~Debt Financing or Equity Financing pursuant to Section 5.16(c), references to the “Debt Financing,” “Equity Financing” and “Commitment Letters” (and other like terms in this Agreement) shall be ~~required~~ deemed to ~~pass resolutions~~ refer to such Alternate Financing, or ~~consents to approve or authorize~~ the ~~execution of the~~ Debt Financing or ~~execute~~ Equity Financing as so amended, replaced, supplemented, modified or ~~deliver any certificate~~waived, ~~document, instrument~~ in each case as applicable. (g) All non-public or ~~agreement that is effective prior to~~ otherwise confidential information regarding either party obtained by the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates other party pursuant to this Section ~~6.13(d)~~ 5.16 shall be kept confidential in accordance with the Confidentiality Agreement; provided, however, that Purchaser shall be permitted to disclose information as necessary and consistent with customary practices in connection with the Debt Financing subject to ~~the Confidentiality Agreement and Section 6.04~~customary confidentiality arrangements reasonably satisfactory to Sellers. (eh) ~~In no event shall~~ If at any time Sellers in good faith reasonably believe that they have provided the Required Financing Information, Sellers may deliver to Purchaser a written notice to that effect (stating when they believe they completed such delivery), in which case Sellers will be deemed to have delivered the Required Financing Information as of the date of delivery of such notice, unless Purchaser in good faith reasonably believes Sellers have not completed the delivery of the Required Financing Information and, within five (5) Business Days after the receipt ~~or availability~~ of ~~the Financing~~such notice from Sellers, ~~Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.~~de

Appears in 1 contract

Sources: Purchase Agreement (Lumen Technologies, Inc.)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser~~ conditions of this Agreement (including Section 5.12(d) hereof), each of Parent ~~each~~ and Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to~~ obtain and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) ~~contained~~ described in the ~~Commitment Letter, subject to~~ Financing Letters and any ~~amendments or modifications thereto permitted by Section 6.13(b),~~ related Fee Letter (~~iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in~~ taking into account the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion anticipated timing of the ~~Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2~~Marketing Period) ~~Business Days) notify ▇▇▇▇▇▇ and Seller~~ and shall ~~use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions~~ not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any ~~termination,~~ amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the ~~Commitment Letter~~ Financing Letters or any related Fee ~~Letters~~ Letter, if such ~~termination,~~ amendment, ~~modification~~modification or waiver (i) reduces the aggregate amount of the Financing (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Financing Letters, ~~waiver~~ or ~~remedy~~ (Aii) ~~adds~~ imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the ~~Financing, (B) modifies any existing conditions to~~ receipt of the Financing or other terms in a manner that ~~affects~~ would reasonably be expected to (x) delay or prevent the ~~consummation of all or any portion~~ Closing Date, (y) make the timely funding of the Financing ~~to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount~~ or satisfaction of the ~~Financing,~~ conditions to obtaining the Financing less likely to occur or (Cz) adversely ~~affects in any material respect~~ impact the ability of ~~Purchaser~~ Parent or Merger Sub, as applicable, to enforce its rights against other parties to the ~~Commitment~~ Equity Financing Letter when required pursuant to Section 8.7(b) of this Agreement or the definitive agreements with respect thereto. For purposes of clarification, the foregoing shall not prohibit Parent from amending the Debt Commitment Letter and any related Fee Letter to add additional lender(s) (and Affiliates of such additional lender(s)) as a party thereto so long as the aggregate number of lenders party to the Debt Commitment Letter and any related Fee Letter does not exceed three (3) (with each party, together with all Affiliates of such party, counted as one lender for such purpose). Any reference in ~~respect thereof, or~~ this Agreement to (DA) ~~could otherwise reasonably be expected to prevent, impede or delay in any material respect~~ “Financing” shall include the ~~consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity~~ financing ~~that could reasonably be expected to materially impair, delay or prevent consummation of the Financing~~ contemplated by the ~~Commitment Letter~~ Financing Letters as amended or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser modified in ~~connection~~ compliance with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, this Section 5.12 and (B) ~~materials for rating agency presentations, (iii) furnishing Purchaser and the~~ “Financing ~~Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation~~ Letters” or “Debt Commitment Letter” shall include such documents as amended or modified in compliance with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section ~~6.13(d~~5.12(a), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (BWAY Holding CO)

Financing. (a) ~~Purchaser and Purchaser Parent each shall use its reasonable best efforts~~ Subject 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 and to consummate the Financing (or any Alternative Financing) on~~ the terms and conditions ~~described~~ of this Agreement, the Debt Commitment Letter and the Equity Commitment Letter and other than as permitted in accordance with this Section 6.17(a) and Section 6.17(d), prior to the Closing, each of Parent and Merger Sub shall not permit (i) any amendment or modification to be made to, or any waiver, release or limitation of any provision or remedy pursuant to the Debt Commitment Letter or the Equity Commitment Letter and (ii) any termination of the Debt Commitment Letter or the Equity Commitment Letter (~~including the flex provisions related thereto~~other than in accordance with its terms), ~~subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain~~ in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall noteach case, without the prior written consent of ~~▇▇▇▇▇▇~~the Company (not to be unreasonably withheld, conditioned or delayed) (~~i) permit any termination, amendment or modification to, or any waiver~~ it being understood that the exercise of any ~~provision or remedy under,~~ “market flex” provisions contained in the ~~Commitment~~ Debt Fee Letter ~~or Fee Letters if such termination,~~ shall not be deemed an amendment, modification, ~~waiver~~ waiver, release or ~~remedy~~ limitation), to the extent such amendment, modification, waiver, release or limitation would (Ax) ~~adds~~ reduce the aggregate amount of the Financing such that Parent would not or does not have sufficient immediately available cash to permit Parent to pay all obligations of Parent hereunder due on the Closing Date, or (y) impose new ~~conditions~~ or additional conditions, or otherwise replace, amend, supplement or modify any of the conditions, to the receipt of the Financing, ~~(B) modifies any existing conditions to the Financing~~ in each case, in a manner that ~~affects the consummation of all or any portion of the Financing to below a level that~~ would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to ~~prevent, impede or delay in any material respect~~ (A) make the ~~consummation~~ funding of the ~~Closing~~ Financing (or the ~~Transactions,~~ satisfaction of the conditions to obtaining the Financing) less likely to occur or (iiB) ~~undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to~~ materially ~~impair,~~ delay or prevent ~~consummation~~ the Closing; provided that Parent may amend, modify, restate and supplement 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 replacement, amendment, supplement or modification may be reduced in the amount of such additional party’s commitments). Upon any modification or amendment of, or waiver or release under, the Equity Commitment Letter or Debt Commitment Letter in accordance with this Section 6.17(a), the term “Equity Commitment Letter” or “Debt Commitment Letter”, as applicable thereto (and consequently the terms “Debt Financing,” “Equity Financing” and “Financing” shall mean the Equity Financing and the Debt Financing contemplated by ~~the~~ such Commitment Letters as so replaced, amended, supplemented, modified or waived), shall mean such Commitment Letter as so replaced, amended, supplemented, modified or ~~any Alternative Financing contemplated by any new debt commitment letter~~waived. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Sealed Air Corp/De)

Financing. (a) ~~Purchaser~~ Buyer shall, and ~~Purchaser Parent each~~ shall cause its Affiliates to, use ~~its~~ reasonable best efforts to take, or cause to be taken, all ~~actions and to~~ appropriate action, do, or cause to be done, all things 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 required, to obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ as promptly as reasonably practicable on the terms and subject only to the conditions ~~described~~ contained in the ~~Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Financing Commitments, including using ~~its~~ reasonable best efforts to (i~~) maintain in effect the Commitment Letter, (ii~~) negotiate and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions ~~(including the flex provisions)~~ contained in the ~~Commitment Letter, subject~~ Financing Commitments or on other terms acceptable to Buyer so long as such definitive agreements (A) do not contain any ~~amendments~~ additional or ~~modifications thereto permitted by~~ modified conditions or other contingencies to the funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement (other than additional or modified conditions or contingencies that would not be prohibited in accordance with paragraph (c) of this Section ~~6.13(b~~6.04), (~~iii~~B) ~~satisfy~~ are in a form that is otherwise not reasonably likely to prevent, impede or delay the availability of the Financing or the Closing and (C) do not reduce the aggregate amount of the Debt Financing set forth in the Financing Commitments as of the date of this Agreement, unless in case of this clause (C), replaced with an amount of new financing on conditions no less favorable to Seller than the terms set forth in the Financing Commitments as of the date hereof, (ii) satisfy, and cause its Affiliates to satisfy, on a timely basis all conditions applicable to ~~Purchaser~~ Buyer or its Affiliates contained in the ~~Commitment~~ Financing Commitments and (iii) consummate the Financing contemplated by the Financing Commitments at the Closing, including by taking enforcement action to cause the financial institutions providing the Debt Financing to fund the Debt Financing. Buyer shall, and shall cause its Affiliates to, refrain from taking, directly or indirectly, any action that is reasonably likely to result in the failure of any of the conditions contained in the Financing Commitments or in any definitive agreement related to the Financing. (a) For the avoidance of doubt and notwithstanding anything to the contrary in this Section 6.04, Buyer acknowledges and agrees that its obligation to consummate the Transactions on the terms and subject to the conditions set forth herein are not conditioned upon the availability or consummation of the Financing, the availability of any replacement commitments or receipt of the proceeds therefrom and, accordingly, the parties hereto agree that a failure of Buyer to close the Transactions resulting from a failure or inability to consummate the Financing constitutes a breach of this Agreement. (b) Buyer shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, any Financing Commitments or the definitive agreements relating to the Financing without Seller’s prior written consent, which consent shall not be unreasonably withheld; provided that Buyer or Parent may amend, supplement or modify the Financing Commitments or the definitive agreements relating to the Financing without Seller’s prior written consent if such amendment, supplement or modification does not (i) reduce the aggregate amount of the Financing set forth in the Financing Commitments as of the date of this Agreement (unless, in case of this clause (i), replaced with an amount of new equity financing on conditions no less favorable to Seller than the terms set forth in the Financing Commitments as of the date hereof), (ii) contain any additional or modified conditions or other contingencies to the funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement or (iii) modify in a manner adverse to Buyer or Parent the conditions to the funding, enforceability, availability or termination of the Financing or otherwise make the impairment or delay of the funding of the Financing or the Closing reasonably likely. (c) If any portion of the Financing becomes unavailable on the terms and conditions contained in the Financing Commitments, Buyer shall promptly notify Seller, and Buyer shall, and shall cause its Affiliates to, use reasonable best efforts to obtain, as promptly as reasonably practicable following the occurrence of such event, replacement commitments on terms that will enable Buyer to consummate the Transactions and that are not less favorable in the aggregate to Seller than those contained in the Financing Commitments; provided that such replacement commitments shall not (i) contain any additional or modified conditions or other contingencies to the funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement or (ii) otherwise be reasonably likely to prevent, impede or delay the availability of the Financing or the Closing . Buyer shall deliver to Seller complete and correct copies of all amendments, supplements, other modifications or agreements (including Redacted Fee Letters) pursuant to which any amended, supplemented, modified or replacement commitments shall provide Buyer with any portion of the Financing. Upon any amendment, supplement, modification or replacement of the Financing Commitments in accordance with this Section 6.04, the terms “Financing”, “Financing Commitment” and “Redacted Fee Letter” shall be in reference to such amended, supplemented, modified or replaced commitment. (d) Seller shall, and shall use its reasonable best efforts to cause its accountants, legal counsel and other advisors to provide commercially reasonable cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by Buyer that is customary in connection with the arrangement of bank debt financing that is substantially similar to the Debt Financing contemplated by the Debt Financing Commitments as of the date of this Agreement (at Buyer’s sole expense (but solely to the extent of the reasonable and documented out-of-pocket costs and expenses (including attorney’s fees) so incurred by Seller or its Affiliates), including (i) participation in a reasonable number of meetings, due diligence sessions, presentations, and sessions with rating agencies, including direct contact between senior management and representatives (including accounting) of the Transferred Companies, on the one hand, and Buyer and its lenders and potential lenders, on the other hand, (ii) assisting with the preparation of materials for rating agency presentations, bank information memoranda, syndication documents (including lender presentations), including business projections reasonably requested by Buyer, in each case, required in connection with the Debt Financing, and furnishing all documentation and other information reasonably required by any financing sources for compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the ~~payment~~ U.S.A. Patriot Act of ~~any commitment~~2001, ~~engagement or placement fees required as a condition~~ at least three (3) business days prior to Closing (to the ~~Financing and~~ extent requested a reasonable time in advance thereof), (iii) permitting Buyer’s lenders to conduct a reasonable due ~~and payable by Purchaser or its Affiliates~~diligence review of the Transferred Companies, (iv) ~~upon~~ furnishing Buyer and its lenders with financial and other pertinent information regarding the ~~satisfaction~~ Transferred Companies that is customary for inclusion in or ~~waiver~~ preparation of ~~such conditions~~the confidential information memorandum contemplated by the Debt Financing Commitments, ~~consummate~~ as may be reasonably requested by Buyer, (v) executing customary authorization and management representation letters to the extent required in connection with the Debt Financing, (vi) assisting in obtaining corporate, credit and facility ratings from rating agencies, (vii) causing the Transferred Companies to assist in the preparation of, and to execute and deliver, definitive financing documents, including guarantee, pledge, security and collateral documents and customary closing certificates as may be required by the Financing on and otherwise reasonably facilitating the pledging of collateral; provided that the Transferred Companies shall not be required to execute any such document or instrument contemplated by this Section 6.04(e) that would become effective prior to the Closing Date, ~~including by drawing on any interim or bridge financing facilities contemplated thereby,~~ (vviii) using commercially reasonable efforts to obtain such ~~third-party consents~~ consents, approvals, authorizations and instruments which may reasonably be requested by Buyer to permit the consummation of the Financing and collateral arrangements, including to obtain payoff letters, releases, terminations, waivers, consents, estoppels and approvals as may be reasonably required in connection therewith, and (ix) taking all corporate actions of the Transferred Companies reasonably necessary to authorize the consummation of the Financing and to permit the proceeds thereof to be made available at the Closing; provided that (A) such requested cooperation shall not unreasonably interfere with the ongoing operations of Seller and its Affiliates, (B) Seller shall not be required to provide any audited or unaudited “carve-out” financial statements of the Business other than the Financial Statements, (C) Seller shall not be required to provide any updates to the Financial Statements, (D) such cooperation shall not cause any representation, warranty, covenant or other term in this Agreement to be breached or cause any closing condition set forth in Article V to fail to be satisfied and (E) such requested cooperation shall not require Seller or its Affiliates 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 Closing, or incur any liability or give any indemnities or otherwise commit to take any action that is not contingent upon the Closing. Buyer shall, promptly upon request by Seller, reimburse Seller for all out-of-pocket costs incurred by Seller or any of its Affiliates (including attorney’s fees) in connection with such cooperation. Buyer and its Affiliates shall, on a joint and several basis, indemnify and hold harmless Seller and its Affiliates from and against any damages suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith. Seller hereby consents to the use of the logos of the Business, the Transferred Companies and their Subsidiaries in connection with the Financing; provided that such logos are used solely in a manner that is not intended to, or reasonably likely to, harm or disparage Seller or such Affiliates or the reputation or goodwill of Seller or such Affiliates. (e) Buyer shall keep Seller informed on a timely basis of the status of the Financing and any material developments relating to the Financing. Without limiting the generality of the foregoing, Buyer shall give Seller prompt notice of (vii) ~~comply~~ any default or breach (or any event that, with ~~its obligations~~ or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach) by any party under the ~~Commitment Letter. If Purchaser~~ Financing Commitments or ~~Purchaser Parent~~ the definitive agreements relating to the Financing of which Buyer becomes ~~aware~~ aware, (ii) any termination of the Financing Commitments, (iii) the receipt of any ~~event~~ written notice or ~~circumstance~~ other written communication from any Person party to a Financing Commitment with respect to any (x) actual or potential default, breach, termination or repudiation of any material provision of any Financing Commitment, any definitive agreement relating to the Financing or any provision of the Financing Commitments or the definitive agreements relating to the Financing, in each case by any party thereto, or (y) material dispute or disagreement between or among any parties to any Financing Commitment or the definitive agreements relating to the Financing, with respect to the obligation to fund the Financing, including any condition with respect to the obligation to fund the Financing, or the amount of Financing to be funded on the Closing Date, (iv) if for any reason Buyer believes in good faith that ~~makes procurement of~~ it will not be able to obtain all or any portion of the Financing ~~reasonably unlikely to occur~~ on the terms, in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter Commitments or the definitive agreements ~~in respect thereof~~relating to the Financing and (v) any amendment, supplement or modifications of, or ~~(D) could otherwise~~ waiver of any rights under, any Financing Commitment or the definitive agreements with respect to the Financing. As soon as reasonably ~~be expected to prevent~~practicable, ~~impede or delay~~ and in any ~~material respect~~ event, within two business days after the ~~consummation~~ date Seller delivers to Buyer a written request, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in clause (i), (ii), (iii), (iv) or (v) of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letterimmediately preceding sentence. (cf) ~~Prior~~ Buyer acknowledges that the information being provided to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser it in connection with the Financing is subject to the terms of Section 6.02. With respect to information disclosed to any rating agency (~~provided that~~ the “Confidential Rating Agency Information”), Buyer shall (i) inform such ~~requested cooperation does not unreasonably interfere with~~ rating agency of the ~~ongoing operations~~ confidential nature of ~~Seller, ▇▇~~the Confidential Rating Agency Information and ▇▇▇▇ any such information provided in writing to such rating agency as “confidential” and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for instruct such rating agency ~~presentations, (iii) furnishing Purchaser and~~ not to disclose the ~~Financing Sources the Required Information; and (iv) facilitating Purchaser~~Confidential Rating Agency Information to any third party or to specifically exclude such information in such rating agency’s ~~preparation of documentation with respect to the pledging of collateral, if applicable~~ratings report. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives Buyer shall be ~~required to pay~~ responsible for any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by breach of this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred covenant by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04such rating agency. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Stock Purchase Agreement (Factset Research Systems Inc)

Financing. (a) ~~Purchaser~~ Prior to the Closing, the Seller shall, and ~~Purchaser Parent~~ shall cause each of the Group Companies to, and the Seller and each of the Group Companies shall use ~~its~~ commercially reasonable ~~best~~ efforts to ~~take~~cause their respective Representatives to, ~~or cause~~ provide all cooperation that is reasonably requested by the Buyer to ~~be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain and to consummate~~ assist the ~~Financing (or any Alternative Financing) on the terms and conditions described~~ Buyer in the ~~Commitment Letter (including~~ arrangement of any Financing. Such cooperation shall be limited to the ~~flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to~~ following: (i) ~~maintain~~ making senior management and advisors of the Group Companies available to participate in ~~effect~~ a reasonable number of meetings, calls, presentations, and due diligence sessions (including accounting due diligence sessions) with proposed lenders, underwriters, initial purchasers, or placement agents, and in sessions with rating agencies, including direct contact between appropriate members of senior management of the ~~Commitment Letter~~Group Companies, on the one hand, and the actual and potential Financing Sources, on the other hand; (ii) ~~negotiate~~ providing reasonable and ~~enter into definitive agreements~~ timely assistance with ~~respect to~~ the ~~Financing on~~ preparation of materials for presentations, offering memoranda, prospectuses and similar documents required in connection with the ~~terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b),~~ Financing; and (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the ~~Financing and due and payable by Purchaser or its Affiliates,~~ extent reasonably requested in writing at least ten (iv10) ~~upon the satisfaction or waiver of such conditions, consummate the Financing on or~~ Business Days prior to the Closing Date, ~~including~~ all documentation and other information with respect to the Group Companies that is required by ~~drawing on~~ regulatory authorities under applicable “know-your-customer” rules and regulations under the USA PATRIOT Act. (b) Notwithstanding the provisions of Section 6.09(a), or any ~~interim~~ other provision of this Agreement to the contrary, nothing in Section 6.09(a) will require the Seller, any member of the Group Company, nor any of their respective Affiliates or ~~bridge financing facilities contemplated thereby~~Representatives, to (i) pay (or agree to pay) any commitment or other fee, provide any indemnities or incur any liability or enter into any agreement in connection with the Financing (other than agreements entered into and liability incurred by the Group Companies that only becomes effective upon the Closing and shall not be an expense or liability of the Seller), (ii) enter into any definitive agreement prior to the Closing (other than delivery of customary authorization and representation letters in connection with the Financing), (iii) give any indemnities that are effective prior to the Closing, (iv) take any action that will violate its Organizational Documents or applicable Laws, (v) prepare any financial statements, projections or other similar materials, (vi) provide access to or disclose information that constitutes attorney work product or that Seller reasonably determines would jeopardize any attorney-client privilege of Seller or any of its Affiliates or its or such Affiliates’ respective Representatives or which is restricted or prohibited under applicable legal requirements, or (vii) take any action that would result in the contravention of, or that could reasonably be expected to result in a violation or breach of, or a default under, any Material Contract to which Seller or any of its Affiliates or its or such Affiliates’ respective Representatives is a party or bound or any obligations of confidentiality binding on Seller or any of its Affiliates or its or such Affiliates’ respective Representatives. No action, liability or obligation of the Seller, any of its Affiliates or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document, or instrument (other than customary authorization and representation letters) relating to the Financing will be required to be effective until the Closing, and neither the Seller nor any of its Affiliates will be required to take any action pursuant to any certificate, agreement, arrangement, document, or instrument that is not contingent on the occurrence of the Closing or that must be effective prior to the Closing (other than customary authorization and representation letters). The Company and its Representatives shall not be required to take any action that would unreasonably interfere with the operation of the business of the Company or require any director, officer or employee of the Company to execute any solvency certificate or similar document. So long as the Seller complies with its obligations under this Section 6.09, in no event shall the Seller, any member of the Group Company, nor any of their respective Affiliates or Representatives have any liability to the Buyer or any of its Affiliates with respect to this Section 6.09, it being understood that nothing in this Section 6.09 shall be interpreted to restrict the ability of Buyer to obtain specific performance of this Section in accordance with Section 10.11. (c) All non-public or other confidential information provided by the Seller or any of its Representatives to the Buyer pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that the Buyer will be permitted to disclose such ~~third~~information to any Financing Sources or prospective Financing Sources that are or may become parties to the Financing (and, in each case, to their respective counsel and auditors) so long as such information is furnished by the Buyer subject to customary confidentiality undertakings in connection with the Financing; provided that the Buyer will be responsible for any breach of confidentiality by such Financing Sources. (d) The Buyer shall promptly, upon request by the Seller, reimburse the Seller and the Company for all reasonable and documented out-~~party consents as may be reasonably required~~ of-pocket costs and expenses (including reasonable attorneys’ fees, but excluding the costs of the Seller’s preparation of its annual and quarterly financial statements) incurred by the Seller, the Company or any of their respective Subsidiaries in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or including the cooperation contemplated by ~~this~~ Section ~~6.13(d~~6.09(a), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ~~▇▇▇▇▇▇~~the Seller, ~~Seller~~ its Subsidiaries and their respective ~~Affiliates~~ Representatives from and against any and all ~~Liabilities~~ Losses suffered or incurred by any of them in connection with the Financing ~~or the cooperation contemplated by this Section 6.13(d~~and any information used in connection therewith, except with respect to (i) ~~and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or~~ any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided ~~to Purchaser~~ in writing by the Seller or its Affiliates ~~pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of~~ for use in connection with the Financing, ~~Alternative Financing~~ including financial statements, (ii) any gross negligence, willful misconduct, Fraud, or ~~any other funds~~ bad faith by the Seller or ~~financing by Purchaser or any of~~ its Affiliates ~~be a condition to any~~ or, in each case, their respective Representatives, or (iii) the material breach of ~~Purchaser’s or Purchaser Parent’s obligations under~~ this ~~Agreement~~Agreement thereby.

Appears in 1 contract

Sources: Stock Purchase Agreement (Hubbell Inc)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser~~ conditions of this Agreement, each of Parent ~~each~~ and Merger Sub shall use its commercially reasonable ~~best efforts~~ efforts, and cause its controlled Affiliates to use commercially reasonable efforts, to take, or cause to be taken, all actions ~~and to do,~~ necessary or ~~cause to be done, all things necessary, proper or~~ reasonably advisable to obtain ~~and to consummate~~ the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted contemplated by ~~Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to~~ the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing Commitments on or prior to the Closing Date, including ~~by drawing~~ with respect to the following: (i) obtain the External Financing on the terms and conditions described in the External Financing Commitments (including, as necessary, any ~~interim~~ “flex” provisions contained in any Fee Letters) or ~~bridge financing facilities contemplated thereby~~on other terms no less favorable in any material respect, in aggregate, to Parent and Merger Sub than those described in the External Financing Commitments, (~~v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi~~ii) comply with ~~its obligations under~~ and maintain in effect the ~~Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of~~ External Financing Commitments until the ~~Financing reasonably unlikely to occur in~~ Transactions are consummated, (iii) negotiate and enter into Definitive Debt Documents no later than the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources Closing on ~~terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than~~ the terms and conditions set forth in the Debt Commitment ~~Letter~~ Letters (including any “market flex” provisions in any Fee Letter) and ~~that would not have any~~ (iv) satisfy, or cause to be satisfied (or obtaining the waiver of), on a timely basis (taking into account the expected timing of the ~~effects prohibited pursuant~~ Marketing Period) all conditions to ~~amendment by Section 6.13(b)~~ the closing of and funding under the External Financing Commitments applicable to Parent and/or Merger Sub that are within its control; provided that Parent and/or Merger Sub may amend, supplement, waive or modify the External Financing Commitments or any Definitive Debt Document, and/or elect to replace all or any portion of the External Financing with alternative financing (~~such financing,~~ the “Alternative Financing”)~~. Purchaser shall~~ , in each case so long as (A) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates~~ the aggregate proceeds of the ~~Commitment Letter~~External Financing (as amended, supplemented, waived or modified) and/or the Alternative ~~Financing or definitive financing agreements related thereto~~Financing, ~~(2) any known breach or default by any party (other than Purchaser or its Affiliates)~~ together with the aggregate proceeds of the ~~Commitment Letter~~Equity Financing, ~~Alternative Financing or definitive financing agreements related thereto,~~ will be sufficient for Parent and the Surviving Company to pay (~~3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4~~i) the ~~receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto~~Merger Consideration, and (Bii) ~~upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed~~ any other amounts required to be paid by Parent or Merger Sub on the Closing Date in connection with the consummation of the ~~status of Purchaser’s~~ Transactions upon the terms and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions ~~to the Financing~~contemplated hereby, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change amendment or modification ~~of any existing certificate, document, instrument~~ or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.the

Appears in 1 contract

Sources: Merger Agreement (Nord Anglia Education, Inc.)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser~~ conditions of this Agreement and the Financing Letters, Parent ~~each shall~~ will use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things ~~necessary,~~ necessary or reasonably proper or advisable to obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Financing Letters, and will not consent to any amendment or modification to be made to, or any waiver of any provision or remedy under (1) the Equity Funding Letters whatsoever (except to increase the amount of the Equity Financing) and (2) the Debt Commitment Letter, in the case of this clause (2), solely to the extent such amendment, modification or waiver would (i) reduce the aggregate principal amount of the Debt Financing (unless the Equity Financing is increased by a corresponding amount or Parent otherwise has available funds in an amount at least equal to such reduction), or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing, in the case of either clause (i) or (ii) above, in a manner that would reasonably be expected to (A) materially delay or prevent the Closing, (B) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur at the Effective Time or (C) adversely impact the ability of Parent or Purchaser to enforce its rights against the other parties to the Financing Letters or the definitive agreements with respect thereto or the ability of Parent or Purchaser to consummate the Transactions; provided, however, that Parent and Purchaser may (i) amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, agents, syndication agents, documentation agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement, (~~including~~ ii) amend or otherwise modify the Debt Commitment Letter to implement any flex provisions ~~related thereto)~~applicable thereto or (iii) otherwise amend, ~~subject~~ modify or replace, or agree to any ~~amendments~~ waivers in respect of, the Debt Commitment Letter so long as (x) such amendment, modification, replacement or ~~modifications thereto~~ waiver does not impose new terms or conditions that would reasonably be expected to materially delay or prevent the Closing, (y) the terms thereof are not less beneficial with respect to conditionality or enforcement, taken as a whole, to Parent or Purchaser than those in the Debt Commitment Letter as in effect on the date of this Agreement and (z) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth below. In the event of such amendment, modification, replacement or waiver of the Debt Commitment Letter as permitted by ~~Section 6.13(b)~~the proviso to the immediately preceding sentence, ~~including using~~ the financing under such amended, modified, replaced or waived Debt Commitment Letter will be deemed to be “Debt Financing” as such term is used in this Agreement. Parent will use its commercially reasonable ~~best~~ efforts to (iI) maintain in effect the ~~Commitment Letter~~Financing Letters (including any definitive agreements entered into in connection therewith) until the earlier of the consummation of the Transaction and the termination of this Agreement, (iiII) satisfy on a timely basis all conditions in the Financing Agreements and in the Equity Funding Letters applicable to Parent and Purchaser (and that are within their control) to obtaining the Financing, (III) negotiate and enter into definitive agreements with respect to the Debt Financing on ~~the~~ terms and conditions ~~(including the flex provisions)~~ contained in the Debt Commitment Letter (as modified, to the extent exercised, by the flex provisions applicable thereto) or otherwise consistent in all material respects with the Debt Commitment Letter, ~~subject~~ or on other terms acceptable to ~~any amendments~~ Parent that would not (i) reduce the aggregate principal amount of the Debt Financing (unless the Equity Financing is increased by a corresponding amount or ~~modifications thereto permitted by Section 6.13(b~~Parent otherwise has available funds in an amount at least equal to such reduction), or (~~iii~~ii) ~~satisfy on a timely basis all conditions applicable~~ impose new or additional conditions, or otherwise amend or modify any conditions, to ~~Purchaser or its Affiliates contained~~ the receipt of the Debt Financing, in the case of either clause (i) or (ii), in a manner that would reasonably be expected to materially delay or prevent the Closing (such definitive agreements, together with the Debt Commitment Letter, ~~including~~ the ~~payment of any commitment~~“Financing Agreements”), ~~engagement or placement fees required as a condition to the Financing~~ and ~~due and payable by Purchaser or its Affiliates,~~ (ivIV) ~~upon the satisfaction or waiver of such conditions,~~ consummate the Financing on at or prior to the Closing ~~Date~~(which efforts shall include, ~~including by drawing on any interim~~ making demand upon the lenders to consummate the Financing to the extent the conditions thereto have been satisfied (other than those which are dependent upon, or ~~bridge financing facilities contemplated thereby~~are to occur simultaneously with, ~~(v) obtain such third-party consents as may be reasonably required in connection with~~ the funding of the Financing, it being agreed that such efforts shall not require the commencement of litigation against any lenders). Upon the Company’s request, Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s and ~~(vi) comply~~ Purchaser’s efforts to obtain the Debt Financing and to satisfy the conditions thereof, including advising and updating the Company, in a reasonable level of detail, with ~~its obligations under~~ respect to status, proposed Closing Date and material terms of the ~~Commitment Letter~~material definitive documentation for the Debt Financing. If ~~Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of~~ any portion of the Financing becomes reasonably ~~unlikely~~ likely to ~~occur in~~ be unavailable on the ~~manner~~ material terms and conditions contemplated by the applicable Financing Agreements or ~~from~~ the ~~sources contemplated in~~ Equity Funding Letters (giving effect to, to the ~~Commitment Letter~~extent exercised, ~~Purchaser shall~~ the flex provisions applicable thereto), (i) Parent will promptly notify the Company and (~~and in any event within two (2~~ii) ~~Business Days) notify ▇▇▇▇▇▇ and Seller and shall~~ Parent will use its commercially reasonable ~~best~~ efforts to ~~arrange as promptly as practicable any such portion~~ obtain alternative financing from alternative sources on in an amount sufficient to consummate the Transactions (it being understood that Parent shall have no obligation to accept any terms ~~and~~ or conditions ~~not~~ that are materially less ~~favorable in the aggregate~~ favorable, taken as a whole, to Parent, Purchaser and ~~its Affiliates~~ the Company than the terms and conditions set forth in the ~~Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative~~ applicable Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Epiq Systems Inc)

Financing. (a) ~~Purchaser~~ Each of Parent and ~~Purchaser Parent each~~ Merger Sub, as applicable, shall ~~use~~ use, and will cause its Subsidiaries and its and their respective officers, directors and employees to use, their respective reasonable best efforts to take, or cause to be taken, and shall use reasonable best efforts to direct its and their respective accountants, legal counsel and other representatives to take, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain ~~and to consummate~~ the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to proceeds of the Financing on the terms and conditions (including any “flex” provisions) described or contemplated in the ~~flex~~ Commitment Letters (or on such terms and conditions that are acceptable to each of Parent and Merger Sub and the providers of the applicable Financing in their sole discretion so long as such other terms and conditions are not prohibited by Section 6.15(b)), including using their respective reasonable best efforts to: (i) maintain in effect the Commitment Letters and, once entered into, any Financing Agreements with respect thereto; (ii) taking into account the expected timing of Closing contemplated by Section 2.2, negotiate and enter into no earlier than the Closing Date definitive financing agreements with respect to the Debt Financing on the terms and conditions (including “flex” provisions) contained or contemplated in the Debt Commitment ~~Letter, subject~~ Letter (or on such terms and conditions that are acceptable to ~~any amendments or modifications thereto permitted~~ each of Parent and Merger Sub and the providers of the Debt Financing in their sole discretion so long as such other terms and conditions are not prohibited by Section ~~6.13(b~~6.15(b), ) (the “Financing Agreements”); (iii) taking into account the expected timing of the Closing contemplated by Section 2.2, satisfy ~~on a timely basis~~ (or obtain the waiver of) all conditions ~~applicable~~ to ~~Purchaser or its Affiliates contained in~~ receipt of the Debt Financing at the Closing contemplated by the Debt Commitment ~~Letter, including the payment of any commitment, engagement or placement fees required as a condition to~~ Letter and the Financing Agreements and ~~due and payable by Purchaser~~ that are within the control of Parent or ~~its Affiliates,~~ Merger Sub; (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly Letters; and (~~and in any event within two (2~~v) ~~Business Days) notify ▇▇▇▇▇▇ and Seller and shall use~~ enforce its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party rights (other than ~~Purchaser or its Affiliates~~through litigation) of under the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative FinancingLetters. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Boingo Wireless, Inc.)

Appears in 1 contract

Sources: Purchase Agreement

Financing. (a) ~~Purchaser and Purchaser Parent each shall use its reasonable best efforts~~ Subject 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 and to consummate the Financing (or any Alternative Financing) on~~ the terms and conditions ~~described in the Commitment Letter (including the flex provisions related thereto)~~of this Agreement, ~~subject to any amendments or modifications thereto permitted by Section 6.13(b), including using~~ Buyer shall use its reasonable best efforts to (i) maintain in effect the ~~Commitment Letter~~DIP Credit Agreement (subject to the right of Buyer to replace, restate, supplement, modify, assign, substitute or amend the DIP Credit Agreement in accordance herewith), (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis or obtain the waiver of all conditions applicable to ~~Purchaser~~ the DIP Borrower or its ~~Affiliates~~ subsidiaries contained in the ~~Commitment Letter, including~~ DIP Credit Agreement (or any definitive agreements related thereto) that are in the ~~payment~~ control of ~~any commitment, engagement or placement fees required as a condition to~~ the ~~Financing and due and payable by Purchaser~~ DIP Borrower or its ~~Affiliates~~subsidiaries, (iii) if applicable, obtain a DIP Amendment in form and substance reasonably satisfactory to Seller (it being agreed that the DIP Amendment entered on August 24, 2020 is satisfactory to Seller), and (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with enforce its ~~obligations~~ rights under the ~~Commitment Letter~~DIP Credit Agreement. ~~If Purchaser or Purchaser Parent becomes aware~~ Buyer shall give Seller prompt notice upon having knowledge of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of any of the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4)~~ provisions of the ~~receipt of notice of~~ DIP Credit Agreement that would reasonably be expected to delay the Closing. Buyer shall promptly provide Seller with any material ~~dispute or disagreement between or among~~ notices from the ~~parties~~ DIP Lenders relating to the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed~~ availability of the ~~status of Purchaser’s and its Affiliates’ efforts to arrange~~ DIP Financing at the ~~Financing or Alternative Financing~~Closing. (b) ~~Notwithstanding anything to the contrary~~ Other than as set forth in ~~this Agreement~~Section 4.25(c) or Section 3.4(d), ~~Purchaser and Purchaser Parent~~ Buyer shall not, without the prior written consent of ~~▇▇▇▇▇▇~~Seller, ~~(i)~~ permit any ~~termination,~~ material amendment or modification to be made to, or any material waiver of any provision or remedy under, the ~~Commitment Letter or Fee Letters if~~ DIP Credit Agreement to the extent such ~~termination,~~ amendment, ~~modification,~~ modification or waiver would (i) impose new or ~~remedy (A) adds new~~ additional conditions to the receipt of the DIP Financing, ~~(B) modifies~~ or otherwise amend or modify any ~~existing conditions~~ of the conditions, to the receipt of the DIP Financing in a manner that ~~affects the consummation of all or any portion of the Financing to below a level that~~ would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to ~~prevent, impede~~ prevent or materially impair or delay ~~in any material respect the consummation of~~ the Closing ~~or the Transactions,~~ or (ii) ~~undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation~~ reduce the aggregate amount of the DIP Financing ~~contemplated by~~ such that Buyer would not or does not have sufficient cash proceeds (together with cash on hand or from other sources) to permit Buyer to pay the ~~Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing,~~ Required Amount; provided that Buyer shall notify Seller ~~and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to~~in writing, and ~~to cause its Representatives to,~~ provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations Seller complete and correct copies of, of ~~Seller~~any amendment, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates supplement or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-modification of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.,

Appears in 1 contract

Sources: Purchase and Sale Agreement (Intelsat S.A.)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser~~ conditions of this Agreement, Parent ~~each~~ and Acquisition Sub shall use ~~its~~ reasonable best efforts to ~~take, or~~ cause to be ~~taken,~~ taken all actions ~~and to do, or cause to be done, all things necessary, proper or advisable~~ necessary to obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and subject to the conditions described in the Commitment ~~Letter (including the flex provisions related thereto)~~Letters, ~~subject to~~ or any ~~amendments or modifications thereto permitted by Section 6.13(b)~~alternative financing, including using ~~its~~ reasonable best efforts to to: (i) maintain in effect the Commitment ~~Letter, (ii)~~ Letters and negotiate and enter into ~~definitive agreements~~ Financing Agreements (as defined in Section 6.9(d)) on the terms and conditions contained in the Commitment Letters, or enter into Financing Agreements with respect to any alternative financing as set forth in Section 6.9(d); (ii) comply with the terms of the Commitment Letters and satisfy on a timely basis (or obtain waiver of) all material conditions precedent to funding under the Financing applicable to Parent in such definitive agreements that are within Parent’s control; and (iii) cause the Financing to be consummated at such time or from time to time as is necessary for Parent to satisfy its obligations under this Agreement. (b) Parent and Acquisition Sub shall have the right from time to time to amend (including, by adding or replacing lenders, lead arrangers, bookrunners, syndication agents or similar entities), replace, supplement or otherwise modify, or waive any of its rights under, the Debt Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Debt Financing from the same and/or alternative financing sources; provided, that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Commitment Letter that amends the Debt Financing and/or substitution of all or any portion of the Debt Financing shall not, without the prior written consent of the Company: (a) reduce the aggregate amount of the Financing, excluding changes in the amount of fees to be paid or original issue discount of the Debt Financing (except to the extent a reduction from such Financing source would be offset by an increase in another portion of the Financing (if such increase is in the Equity Financing, such increase shall be reflected in an amended Equity Commitment Letter delivered to the Company) or in the debt or other alternative financing being made available by an alternative financing source) or (b) impose new or additional conditions or expand, amend or modify any of the conditions to the receipt of the Financing in a manner adverse to the Company or otherwise be reasonably likely to (i) prevent or delay or impair the ability of Parent to consummate the Offer, the Merger and the other Contemplated Transactions or (ii) adversely impact the ability of Parent or Acquisition Sub to enforce its rights against the other parties to the Financing Commitments in each of clauses (i) and (ii) in any material respect. Parent shall not release or consent to the termination of the obligations of the lenders under the Debt Commitment Letters, except for assignments and replacements of an individual lender under the terms of or in connection with the syndication of the Debt Commitment Letters. (c) Parent and Acquisition Sub shall give the Company prompt notice (x) of any breach or default by any party to any of the Commitment Letters or Financing Agreements of which Parent or Acquisition Sub become aware, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any financing source with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any of the Commitment Letters or Financing Agreements (2) material dispute or disagreement between or among any parties to any of the Commitment Letters or Financing Agreements with respect to the obligation to fund the Financing or the amount of the Financing to be funded at the Effective Time or the Acceptance Time (as applicable), 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 Financing on the terms and ~~conditions (including the flex provisions) contained~~ conditions, in the ~~Commitment Letter, subject to~~ manner or from the sources contemplated by any ~~amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in~~ of the Commitment ~~Letter, including~~ Letters or Financing Agreements. (d) In the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event ~~or circumstance~~ that ~~makes procurement of~~ any portion of the Financing ~~reasonably unlikely to occur~~ becomes or could become unavailable in the manner or from the sources contemplated in the Commitment ~~Letter~~Letters, ~~Purchaser shall promptly (~~Parent and ~~in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and~~ Acquisition Sub shall use ~~its~~ their respective reasonable best efforts to arrange ~~as promptly as practicable any such portion~~ and obtain, and to negotiate and enter into definitive agreements with respect to, alternative financing from alternative ~~sources on~~ financial institutions in an amount sufficient to consummate the Contemplated Transactions upon terms ~~and conditions not materially~~ (including any flex provisions) no less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Tufco Technologies Inc)

Financing. (a) Purchaser ~~and Purchaser Parent each~~ 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~~ obtain ~~and to consummate~~ the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Debt Commitment Letter (~~including~~ including, if applicable, the flex ~~provisions related thereto~~provisions), subject to any amendments or modifications thereto permitted by this Section ~~6.13(b)~~6.18, on or prior to the Closing, including using ~~its~~ reasonable best efforts to do the following: (i) ~~maintain~~ complying with its obligations under the Debt Commitment Letter in ~~effect~~ the ~~Commitment Letter~~form provided to the Company on or prior to the date hereof, subject to any amendments or modifications thereto permitted by this Section 6.18; (ii) ~~negotiate and enter~~ entering into definitive agreements with respect to the Debt Financing on a timely basis on terms and conditions that are not less favorable (taken as a whole) to Purchaser than the terms and conditions contained in the Debt Commitment Letter (including, if applicable, the flex provisions) (as in effect on the date hereof, subject to any amendments or modifications thereto permitted by this Section 6.18) on or prior to the Closing; (iii) satisfying (or obtaining a waiver of) at or prior to the Closing all covenants and conditions in the Debt 96 Commitment Letter (subject to any amendments or modifications thereto permitted by this Section 6.18) that are within its control, including the payment of any fees or expenses required as a condition to Debt Financing; (iv) maintaining in full force and effect the Debt Commitment Letter (subject to any amendments or modifications thereto permitted by this Section 6.18) until the earlier of consummation of the Closing or entry into definitive agreements with respect to the Debt Financing; (v) subject to the terms and conditions of the Commitment Letters and satisfaction of the conditions specified in Section 7.1 and Section 7.2, consummating the Debt Financing contemplated by the Debt Commitment Letter (subject to any amendments or modifications thereto permitted by this Section 6.18) on or prior to the Closing. Subject to the terms and conditions of the Equity Commitment Letters, upon satisfaction or waiver of the conditions to the Closing set forth in Section 7.1 (Conditions to the Obligations of Each Party) and Section 7.2 (Conditions to the Obligations of Purchaser) and the conditions specified in the Equity Commitment Letters, Purchaser shall use its reasonable best efforts to obtain the Equity Financing contemplated by the Equity Commitment Letters at the Closing. If at any time Purchaser believes it is reasonably likely that Purchaser will be unable for any reason to consummate the Debt Financing contemplated by the Debt Commitment Letter, or in the event any portion of the Debt Financing expires or is terminated, or upon receipt of written notice of any actual or threatened repudiation or breach of the Debt Commitment Letter by any party thereto, or the Debt Financing otherwise becomes unavailable on the terms and conditions ~~(including the flex provisions) contained~~ contemplated in the Debt Commitment Letter, subject to any amendments or modifications thereto permitted by this Section ~~6.13(b)~~6.18, ~~(iii) satisfy on a timely basis all conditions~~ in each case where such applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Debt Financing ~~reasonably unlikely~~ is required to ~~occur in~~ consummate the ~~manner or from the sources~~ transactions contemplated ~~in the Commitment Letter~~hereby, Purchaser ~~shall~~ promptly (and in any event within ~~two~~ five (25) Business Days) shall notify ~~▇▇▇▇▇▇~~ Seller of such unavailability and ~~Seller~~ the reasons therefor and shall thereafter use its reasonable best efforts to seek and to arrange ~~as promptly as practicable any such portion~~ to obtain alternative financing (“Alternative Financing”), including from alternative sources on terms not less favorable, taken as a whole, to Purchaser than the terms of the Debt Commitment Letter, no later than the Closing Date. Notwithstanding anything herein to the contrary, in no event shall the foregoing require Purchaser to, and ~~conditions~~ Purchaser shall not ~~materially less favorable~~ be required to, (A) incur any fees in excess of those contemplated in the ~~aggregate~~ Debt Commitment Letter as in effect on the date hereof (including, if applicable, the flex provisions) or (B) agree to ~~Purchaser and its Affiliates~~ any terms or conditions less favorable, taken as a whole, than the terms and conditions ~~set forth in~~ of the Debt Commitment Letter in effect on the date hereof (including, if applicable, the flex provisions). For the purposes of this Agreement, all references to the Debt Financing and/or the Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letter shall include the applicable documents for the Alternative Financing and ~~that would not have any~~ all references to the Debt Financing Sources shall be deemed to include the lenders for (or other creditors in respect of) such Alternative Financing. To the extent requested by Seller, Purchaser shall keep Seller informed on a prompt basis in reasonable detail of the ~~effects prohibited pursuant~~ status of its efforts to ~~amendment by Section 6.13(b) (such financing,~~ arrange and consummate the ~~“Alternative~~ Financing”). Purchaser shall ~~(A)~~ give ~~▇▇▇▇▇▇~~ Seller and ~~Seller~~ the Company prompt ~~oral and~~ written notice (x) of ~~(1)~~ any ~~breach~~ threatened or ~~default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known~~ actual breach or default by any party ~~(other than Purchaser~~ to the Debt Commitment Letter or ~~its Affiliates)~~ any threatened or actual termination of the Debt Commitment Letter, ~~Alternative Financing or definitive financing agreements related thereto,~~ (3y) ~~any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice~~ of any material dispute or disagreement between or among ~~the~~ any parties to the Debt Commitment ~~Letter, Alternative~~ Letters or definitive agreements related to the Debt Financing with respect to the obligation to fund the Debt Financing or ~~definitive financing agreements related thereto~~the amount of Debt Financing to be funded at the Closing, and (Bz) ~~upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts~~ if at any time for any reason Purchaser believes in good faith that it will not be able to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of obtain all or any portion of the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ on the ~~Transactions~~terms and conditions, ~~(B) reduces~~ in the ~~committed amount of~~ manner or from the ~~Financing, (C) adversely affects in any material respect~~ sources contemplated by the ~~ability of Purchaser to enforce its rights against other parties to the~~ Debt Commitment ~~Letter~~ Letters or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.Debt 97

Appears in 1 contract

Sources: Membership Interest Purchase Agreement (Macquarie Infrastructure Corp)

Financing. (a) Purchaser and ~~Purchaser Parent each~~ Merger Sub shall use ~~its~~ 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 ~~obtain~~ arrange and to consummate the Debt Financing (or ~~any Alternative Financing~~the permanent financing contemplated by the Debt Financing Commitments or an alternative source of debt financing, in each case in lieu thereof) on the terms and conditions described in or contemplated by the ~~Commitment Letter~~ Debt Financing Commitments (including ~~the flex provisions related thereto), subject to~~ complying with any ~~amendments or modifications thereto permitted by Section 6.13(b~~request exercising so-called “flex” provisions), including using ~~its~~ reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions ~~applicable~~ to ~~Purchaser or its Affiliates contained~~ funding in the Debt Financing Commitments or with respect to such permanent financing contemplated by the Debt Commitment ~~Letter, including the payment~~ Letters or an alternative source of ~~any commitment, engagement~~ debt financing and enforcing all of its rights under or ~~placement fees required as a condition~~ with respect to the Debt Financing ~~and due and payable by Purchaser~~ Commitments or ~~its Affiliates, (iv) upon the satisfaction or waiver~~ any alternative source of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letterdebt financing. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and ~~its Affiliates than~~ the ~~terms and conditions set forth in the Commitment Letter and that would~~ Merger Sub shall not ~~have any of the effects prohibited pursuant to amendment by Section 6.13(b)~~ (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ~~▇▇▇▇▇▇, (i~~the Company) ~~permit~~ consent or agree to any ~~termination,~~ amendment or modification to, or any waiver of any provision ~~or remedy~~ under, the ~~Commitment Letter~~ Debt Financing Commitments or ~~Fee Letters~~ the definitive agreements relating to the Debt Financing, or enter into any other agreement or arrangement with respect to alternative financing, if such ~~termination,~~ amendment, ~~modification,~~ modification or waiver or ~~remedy~~ other agreement or arrangement (Ai) ~~adds~~ decreases the aggregate amount of the Debt Financing to an amount that, together with Purchaser’s and the Merger Sub’s cash on hand or available alternative financing commitments, would be less than an amount that would be required to fund the payment of the Aggregate Adjusted Closing Consideration and the fees and expenses of or payable by Purchaser and Merger Sub related to the transactions contemplated hereby or (ii) imposes new or additional conditions or otherwise expands any of the conditions to the ~~Financing~~receipt of the Debt Financing (or the permanent financing contemplated by the Debt Financing Commitments or an alternative source of debt financing, (Bin each case in lieu thereof) ~~modifies~~ or otherwise consent or agree to any ~~existing conditions~~ amendment or modification, or any waiver of any provision or any other agreement or arrangement that would or would reasonably be expected to prevent or materially delay the ~~Financing in a manner that affects~~ funding or financing described therein or the consummation of the transactions contemplated by this Agreement; provided, that, for the avoidance of doubt Purchaser and the Merger Sub shall be permitted to consent or agree to any amendment or modification, or any waiver of any provision, under the Debt Financing Commitments if such amendment, modification or waiver solely extends the term of the Debt Financing Commitments or adds lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date hereof as parties thereto. Upon the Company’s request, Purchaser and the Merger Sub shall keep the Company reasonably informed on a current basis and in reasonable detail of material developments in respect of the Debt Financing and the financing process relating thereto. Purchaser and the Merger Sub shall provide the Company prompt notice (x) of any breach or default by any party to the Debt Financing Commitments (or the permanent financing contemplated by the Debt Financing Commitments or an alternative source of debt financing, in each case in lieu thereof) or definitive agreements related thereto of which Purchaser and the Merger Sub become aware that would or would reasonably be expected to prevent or materially delay the funding or financing described in the Debt Financing Commitments or the consummation of the transactions contemplated by this Agreement, and (y) if at any time for any reason Purchaser and the Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ on the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing terms and conditions contemplated by the ~~Commitment Letter~~ Debt Financing Commitments or definitive agreements related thereto. As soon as reasonably practicable, Purchaser and the Merger Sub shall provide any ~~Alternative Financing contemplated~~ information reasonably requested by the Company relating to any ~~new debt commitment letter~~circumstance referred to in clause (x) or (y) of the immediately preceding sentence. (cb) Prior to the Closing, ~~Seller~~ each of the Company and ▇▇ ▇▇▇▇▇▇▇ shall, ~~at Purchaser’s cost~~ and ~~expense, use reasonable best efforts~~ each shall cause the other APN Entities and their respective Affiliates to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to cause its, the APN Entities’ and their respective Affiliates’ officers, directors, employees, agents, and other representatives (collectively, “Representatives”) to, at Purchaser’s sole cost and expense, provide all cooperation that is reasonably requested by Purchaser to assist Purchaser and the Merger Sub in the arrangement of any third party debt financing (including the Debt Financing and any debt capital markets financing) for the purpose of funding the payment of the Aggregate Adjusted Closing Consideration and the fees and expenses of or payable by Purchaser and Merger Sub related to the transactions contemplated hereby (collectively, the “Financing”), including, without limitation: (i) using reasonable best efforts to, as promptly as reasonably practicable, furnish to Purchaser and the Financing Sources the Required Information and using reasonable best efforts to furnish to Purchaser such limited financial data as is customarily included in a ~~manner that~~registered offering of debt securities with respect to an acquired business for which neither financial statements under Item 3-05 of Regulation S-X nor pro forma financial statements under Article 11 of Regulation S-X are required to the extent reasonably requested by Purchaser; (ii) using reasonable best efforts to cooperate with the marketing efforts of Purchaser and the Financing Sources, ~~taken~~ including 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 APN Entities’ and any of their respective Affiliates senior management and Representatives, presentations, roadshows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing; (iii) using reasonable best efforts to cause the APN Entities’ and their independent accountant, as reasonably requested, to provide reasonable assistance to Purchaser consistent with their customary practice (including to provide any “comfort letters” (including drafts thereof) necessary and reasonably requested by Purchaser in connection with any debt capital markets transaction comprising a ~~whole~~part of the Financing (which such accountants would be prepared to issue at the time of pricing and at closing of any offering or placement of the Financing), in each case, on customary terms and consistent with their customary practice) and to participate in reasonable and customary due diligence sessions; and (iv) to the extent that the APN Entities or any of their respective Affiliates are to be party to the Financing following the occurrence of the Effective Time, (x) facilitating 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 (y) using reasonable best efforts to, to the extent requested by the Financing Sources at least ten (10) Business Days prior to the Closing Date, provide to the Financing Sources at least three (3) Business Days prior to the Closing Date all customary and reasonable documentation and other information required by regulatory authorities with respect to the APN Entities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001, as amended; provided, however, that nothing in this Section 6.8 shall require such cooperation to the extent it would (A) unreasonably disrupt or interfere with the business or operations of the APN Entities or the conduct thereof, (B) require the APN Entities 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 Purchaser promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the APN Entities), or incur any liability in connection with the Financing that is effective prior to the occurrence of the Effective Time, or (C) require the APN Entities 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 ~~contain~~ occur (other than customary authorization letters in connection with any ~~untrue statement~~ syndication materials). Without limiting the foregoing proviso, Purchaser agrees, promptly upon request, to reimburse the APN Entities for all of ~~a material fact regarding~~ their reasonable out-of-pocket costs, fees and expenses (including fees and disbursements of counsel) in connection with the ~~Purchased Assets or~~ Financing promptly following the ~~Triage Business or omit to state a material fact necessary to make~~ incurrence thereof (but excluding any costs, fees and expenses of preparing the ~~statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading~~ Required Information set forth in ~~the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing,~~ clauses (i) ~~none~~ and (ii) of the definition thereof, which shall not be reimbursed). Purchaser shall indemnify and hold harmless ▇▇ ▇▇▇▇▇▇▇ Seller, ▇▇ ▇▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller APN Entities and their respective ~~Affiliates for all out-of-pocket fees~~Affiliates, ~~costs~~ and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller its and their respective ~~Affiliates~~ Representatives, from and against any and all ~~Liabilities~~ 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 ~~the Financing~~ any action taken, or ~~the~~ cooperation ~~contemplated~~ provided, by ~~this Section 6.13(d) and (iv) none of~~ ▇▇ ▇▇▇▇▇▇▇ Seller, ▇▇ ▇▇▇▇▇▇▇, ~~Seller or~~ the APN Entities and their respective ~~Affiliates,~~ Affiliates or any ~~Persons who are directors~~ of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates their respective Representatives pursuant to this Section ~~6.13(d)~~ 6.8 and/or the provision of information utilized in connection therewith (other than information provided in writing by any of the ▇▇ ▇▇▇▇▇▇▇ Seller, ▇▇ ▇▇▇▇▇▇▇ or the APN Entities or their respective Affiliates 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 APN Entities or their Representatives’ gross negligence, willful misconduct or material breach of this Agreement, as applicable. The Company hereby consents to the use of its and the other APN Entities’ logos in connection with the Financing, provided such logos are used solely in a customary manner that is not intended to or reasonably likely to harm or disparage the APN Entities or the reputation or goodwill of the APN Entities and on such other customary terms and conditions as the Company shall reasonably impose. Notwithstanding anything to the contrary provided herein or in the Confidentiality Agreement, Purchaser shall be permitted to share all information subject to ~~the Confidentiality Agreement~~ such agreements with its potential financing sources and ~~Section 6.04~~their Representatives, subject to customary confidentiality undertakings by such potential financing sources with respect thereto. (ec) ~~In no event shall~~ Purchaser and Merger Sub acknowledge and agree that obtaining the ~~receipt or availability of the Financing, Alternative~~ Financing ~~or any other funds or financing by Purchaser or any of its Affiliates be~~ is not a condition to ~~any of Purchaser’s or Purchaser Parent’s obligations under this Agreement~~the Closing.

Appears in 1 contract

Sources: Stock Purchase Agreement (J M SMUCKER Co)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser Parent each~~ conditions of this Agreement, Buyer (i) 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~~ obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions (including the flex provisions) described in the Commitment Letter pursuant to the terms thereof and (ii) shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter if such amendment, modification or waiver (A) reduces (or could have the effect of reducing) the aggregate amount of the Financing (including by increasing the ~~flex provisions related thereto)~~amount of fees to be paid or original issue discount unless the Financing is increased by a corresponding amount) or (B) imposes new or additional conditions or otherwise expands, ~~subject~~ amends or modifies any of the conditions to the receipt of the Financing, or otherwise expands, amends or modifies any ~~amendments~~ other provision of the Commitment Letter, in a manner that would reasonably be expected to (y) delay or ~~modifications~~ prevent or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (z) adversely impact the ability of Buyer to enforce its rights against other parties to the Commitment Letter or the definitive agreements with respect thereto ~~permitted by Section 6.13(b)~~or otherwise impair or delay the Closing or the date on which the Financing would be obtained. Buyer shall promptly deliver to Seller true and correct copies of any such amendment, ~~including using~~ modification or replacement. (b) Buyer shall use its ~~reasonable~~ best efforts to (i) to maintain in effect the Commitment Letter, (ii) to negotiate and enter into definitive agreements with respect to the ~~Financing~~ Commitment Letter on the terms and conditions (including the flex provisions) contained in the Commitment Letter (or on terms no less favorable to Buyer than the terms and conditions (including flex provisions) in the Commitment Letter~~, subject to any amendments or modifications thereto permitted by Section 6.13(b~~), (iii) to satisfy on a timely basis all conditions ~~applicable~~ to ~~Purchaser~~ receipt of the Financing at the Closing set forth in the Commitment Letter that are within its control or subject to its ~~Affiliates contained~~ influence and, upon satisfaction of the conditions set forth in the Commitment Letter, ~~including~~ to consummate the ~~payment of any commitment, engagement~~ Financing at or ~~placement fees required as a condition~~ prior to the Closing, including using its best efforts (including through litigation pursued in good faith) to cause the Financing ~~and due and payable by Purchaser or its Affiliates~~Sources to fund the Financing at the Closing, (iv) ~~upon~~ to enforce its rights (including through litigation pursued in good faith) under the ~~satisfaction or waiver of such conditions~~Commitment Letter, ~~consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby,~~ and (v) ~~obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi)~~ to comply with its obligations under the Commitment Letter. ~~If Purchaser~~ Buyer shall keep Seller informed on a current basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to Seller copies of drafts and definitive agreements for the Financing. Without limiting the generality of the foregoing, Buyer shall give Seller prompt notice (y) of any breach or ~~Purchaser Parent~~ default by any party to any of the Commitment Letter or definitive agreements related to the Financing of which Buyer becomes aware and (z) of the receipt of any ~~event~~ written notice from any Financing Source with respect to any actual breach, default, termination or ~~circumstance that makes procurement~~ 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. If any portion of the Financing otherwise becomes unavailable, and such portion is reasonably ~~unlikely~~ required to ~~occur in~~ fund the ~~manner or from the sources~~ Purchase Price and all fees, expenses and other amounts contemplated ~~in the Commitment Letter~~to be paid by Buyer pursuant to this Agreement, ~~Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and~~ Buyer shall use its ~~reasonable~~ best efforts to arrange ~~as promptly as practicable any such portion~~ and obtain in replacement thereof alternative financing from alternative sources on in an amount sufficient to consummate the transactions contemplated by this Agreement with terms and conditions not materially less favorable ~~in the aggregate~~ to ~~Purchaser and its Affiliates~~ Buyer than the terms and conditions set forth in the Commitment Letter as promptly as reasonably practicable following the occurrence of such event. Buyer shall deliver to Seller true and ~~that would not have any~~ complete copies of ~~the effects prohibited~~ all agreements and contracts pursuant to ~~amendment by Section 6.13(b) (~~which any such ~~financing, the “Alternative Financing”). Purchaser~~ alternative source shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties have committed to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or provide any portion of the ~~Financing to below a level~~ Financing. Buyer acknowledges that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of obtaining the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the ~~Financing (provided that such requested cooperation does~~ Closing is not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to ~~any of Purchaser’s or Purchaser Parent’s~~ Buyer complying with its obligations under this Agreement, including closing the transactions contemplated herein following satisfaction or waiver of the conditions in Article 8 and Article 9.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Ugi Corp /Pa/)

Financing. (a) ~~Purchaser~~ Each of Merger Sub and ~~Purchaser~~ Parent ~~each~~ shall use ~~its~~ their respective reasonable best efforts to ~~take, or cause to be taken, all actions~~ consummate and ~~to do, or cause to be done, all things necessary, proper or advisable to~~ obtain ~~and to consummate~~ the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to proceeds of the Financing on the terms and conditions (including the flex provisions) ~~contained~~ described in the ~~Commitment Letter~~Financing Commitments (as replaced, ~~subject~~ amended, supplemented, modified, waived or superseded to ~~any amendments or modifications thereto permitted~~ the extent not prohibited by Section ~~6.13(b)~~4.15(b) below) on a timely basis to facilitate the Closing when required by Section 1.2, including using their respective reasonable best efforts to: (i) to maintain in effect the Financing Commitments until the Transactions are consummated, (ii) enforce (including through specific performance, litigation or other appropriate proceedings, each of the foregoing pursued in good faith) its rights under the Debt Commitment Papers, (iii) ~~satisfy~~ negotiate and enter into definitive agreements with respect thereto on ~~a timely basis all~~ the terms and conditions ~~applicable to Purchaser or its Affiliates~~ (including flex provisions) contained in the ~~Commitment Letter,~~ Financing Commitments (or on terms not materially less favorable to Parent or Merger Sub than the terms and conditions (including ~~the payment of any commitment, engagement or placement fees required as a condition to~~ flex provisions) in the Financing ~~and due and payable by Purchaser or its Affiliates~~Commitments), (iv) ~~upon the satisfaction~~ satisfy, or ~~waiver of such conditions~~cause their Representatives to satisfy, ~~consummate the Financing~~ on or prior to the Closing ~~Date, including by drawing on any interim~~ Date (or ~~bridge financing facilities contemplated thereby,~~ obtain the waiver of) all conditions in the Financing Commitments and such definitive agreements applicable to it that are within its control and (v) ~~obtain such third-~~cause (including through litigation pursued in good faith) the Financing Sources who are party ~~consents as~~ to the Debt Financing Commitments and any other person providing Financing to fund the Financing at the Closing (and in any event prior to the Outside Date). (b) Neither Merger Sub nor Parent shall agree to any amendments or modifications to, or grant any waivers of, any condition or other provision or remedy under the Financing Commitments or Financing Agreements without the prior written consent of the Company (which may be granted or withheld in the Company’s sole discretion), to the extent such amendments, modifications or waivers would or would reasonably ~~required~~ be expected to (i) reduce (or have the effect of reducing) the aggregate amount of aggregate cash proceeds available from the Financing (including by changing the amount of fees to be paid or original issue discount) below an amount that, when combined with Parent’s and Merger Sub’s other sources of funds, is sufficient to fund the Required Amount, or (ii) impose new or additional conditions precedent to the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing in ~~connection~~ a manner that would reasonably be expected to be adverse to Merger Sub, Parent or the Company, including any expansion, amendment or modification that would or would be reasonably be expected to (A) prevent or delay or impair the ability of Merger Sub and Parent to consummate the Merger and the other Transactions to be consummated on the Closing Date pursuant to this Agreement, (B) adversely impact the ability of Merger Sub or Parent to enforce its rights or remedies against the other parties to the Financing Commitments or Financing Agreements or (C) make the funding of the Financing on the Closing Date or satisfaction of the conditions precedent to obtaining the Financing on the Closing Date any less likely to occur; provided that, subject to compliance with the ~~Financing~~other provisions of this Section 4.15, Parent and Merger Sub may amend the Debt Commitment Letter to (1) add and/or replace arrangers, bookrunners, agents or similar entities, (2) modify pricing or implement or exercise any of the flex provisions contained in the Debt Commitment Papers and (vi3) ~~comply~~ reallocate commitments or assign or reassign titles or roles to, or between or among, any parties to the Debt Commitment Papers in accordance with ~~its~~ the terms thereof. Parent shall promptly deliver to the Company copies of any such amendment, modification or waiver of any of the Financing Commitments or the Financing Agreements. Neither Merger Sub nor Parent shall release or consent to the termination of the obligations of the lenders and other Persons under the Financing Commitments or Financing Agreements, except for (i) replacements of the Debt Commitment ~~Letter. If Purchaser~~ Letter with alternative financing commitments pursuant to Section 4.15(d), or ~~Purchaser Parent becomes aware~~ (ii) assignments and replacements of lenders under the terms of the syndication of the Financing Commitments in accordance with the terms thereof so long as any such assignment or replacement would not result in any of the circumstances described in the first sentence of this Section 4.15(b). (c) In the event ~~or circumstance~~ that ~~makes procurement of~~ any portion of the Financing becomes or would reasonably ~~unlikely~~ be expected to ~~occur~~ become unavailable in the manner ~~or from the sources~~ contemplated in the ~~Commitment Letter~~Financing Commitments (other than as a result of the termination of the Financing Commitments on the Outside Date pursuant to the terms thereof), ~~Purchaser~~ Parent shall promptly ~~(and~~ so notify the Company. As soon as reasonably practicable, but in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any Days of the ~~effects prohibited pursuant~~ date the Company delivers to ~~amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and~~ Parent or Merger Sub a written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, ~~otherwise keep ▇▇▇▇▇▇~~ Parent and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent Merger Sub shall ~~not, without the prior written consent of ▇▇▇▇▇▇, (i) permit~~ provide any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is information reasonably requested by ~~Purchaser in connection with~~ the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related Company relating to ~~the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources~~ any circumstance referred to in the ~~preparation of (A) a customary offering document~~immediately preceding sentence or in Section 4.15(d)(ii); provided, ~~private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing~~however, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the ~~Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt~~ rules of discovery otherwise applicable, that Parent or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.Merger Sub need not

Appears in 1 contract

Sources: Merger Agreement (Xura, Inc.)

Financing. (a) ~~Purchaser and Purchaser~~ Parent ~~each~~ 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 consummate and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment ~~Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Letter, including using ~~its~~ reasonable best efforts to (i) maintain in effect the Commitment ~~Letter~~Letter for the commitment period set forth therein, (ii) negotiate ~~and enter into~~ definitive agreements with respect ~~to the Financing~~ thereto on the terms and conditions ~~(including the flex provisions) contained~~ set forth in the Commitment ~~Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b~~Letter (the “Definitive Agreements”), (iii) satisfy on a timely basis all conditions ~~applicable~~ to ~~Purchaser or~~ the funding of the Financing that are within its ~~Affiliates contained in~~ control and comply with its obligations and enforce its rights under the Commitment ~~Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing~~ Letter and ~~due and payable by Purchaser or its Affiliates,~~ (iv) ~~upon the satisfaction or waiver of such conditions, consummate the Financing on or prior~~ seek to ~~the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v)~~ obtain such third-party consents as may be reasonably required in connection with the Financing. Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources (including to reduce the amount of the Financing), provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter (A) shall not expand upon the conditions precedent to the Financing as set forth in the original Commitment Letter (whether by adding additional conditions precedent or modifying conditions precedent contained in the original Commitment Letter), (B) shall provide for a financing amount not less than the amount necessary to satisfy the Required Amounts in full after taking into account the Specified Financial Resources, and (viC) ~~comply with its obligations under~~ shall not prevent or materially delay the ~~Commitment Letter~~consummation of the Mergers and the other transactions contemplated by this Agreement (any financing and related commitment satisfying the foregoing conditions (A)-(C), a “Qualifying Financing”). If ~~Purchaser~~ any portion of the Financing becomes unavailable or ~~Purchaser~~ Parent becomes aware of any event or circumstance that makes ~~procurement of~~ any portion of the Financing ~~reasonably unlikely to occur~~ unavailable, in each case, on the ~~manner or from the sources~~ terms and conditions contemplated in the Commitment ~~Letter~~Letter and such portion is reasonably required to satisfy the Required Amounts in full, ~~Purchaser~~ Parent shall ~~promptly~~ (1) notify the Company and ~~in any event within two~~ (2) ~~Business Days~~seek to arrange and obtain Qualifying Financing as promptly as reasonably practicable following the occurrence of such event. Parent shall give the Company prompt notice of any material breach by any party to the Commitment Letter (or commitment for any alternative financing obtained in accordance with this Section 6.14) ~~notify ▇▇▇▇▇▇~~ or of any condition not likely to be satisfied, in each case, of which Parent becomes aware or any termination of the Commitment Letter (or commitment for any alternative financing obtained in accordance with this Section 6.14). Parent shall provide to the Company copies of all documents related to the Financing (other than any ancillary documents subject to confidentiality agreements, including fee letters and ~~Seller~~ engagement letters). Parent shall refrain and shall cause its Affiliates to 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 Commitment Letter or in any Definitive Agreement. Parent shall keep the Company informed on a prompt basis and in reasonable detail of the status of its efforts to arrange the Financing (or any replacement Financing). Parent shall use its reasonable best efforts to enforce its rights under the Commitment Letter and to cause the lenders and the other Persons providing such Financing (or any alternative financing) to fund the Financing (or alternative financing) required to consummate the Merger on the Closing Date in accordance with the terms of such Financing (or alternative financing), including by commencing a litigation proceeding against any breaching financial institution or institutions in which Parent will use its reasonable best efforts to compel such breaching institution or institutions to provide its portion of such Financing as required. Parent shall use reasonable best efforts to maintain available to itself sufficient Specified Financial Resources such that the representation contained in the third-to-last sentence of Section 4.02(k) remains true and correct as of each date from and after the date hereof until the earlier to occur of the Effective time and the termination of this Agreement in accordance with Section 8.01. (b) The Company shall provide, and shall cause its Subsidiaries to provide, and shall use its reasonable best efforts to ~~arrange as promptly as practicable any such portion from alternative sources on terms~~ cause each of its and ~~conditions not materially less favorable in the aggregate~~ their respective Representatives, including legal, tax, regulatory and accounting, to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shallprovide, at ~~Purchaser~~Parent’s ~~cost and~~ sole expense, ~~use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser~~ such cooperation ~~as is reasonably requested by Purchaser~~ in connection with the Financing as Parent shall reasonably request (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of ~~Seller~~the Company and its Subsidiaries), ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ including using reasonable best efforts to (i) ~~assisting in preparation for~~ provide, as promptly as reasonably practicable, information relating to the Company and ~~participation in customary marketing efforts related~~ its Subsidiaries to the Financing Sources (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the ~~Alternative Financing,~~ completion of the Financing as ~~applicable with prospective lenders, investors and ratings agencies~~contemplated by the Commitment Letter, (ii) ~~assisting Purchaser~~ cause its senior management and other appropriate employees of the ~~Financing Sources~~ Company to participate in a reasonable number of 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) assist in the preparation of such documents and materials as may be reasonably required in connection with the Financing, including (A) a any customary offering ~~document~~documents, private placement ~~memorandum and/or~~ memoranda, bank information ~~memorandum~~ memoranda, Form 8-Ks, registration statements, prospectuses and similar ~~marketing~~ documents (including historical and pro forma financial statements and information) for any of the ~~Financing or the Alternative~~ Financing~~, as applicable~~, and (B) materials for rating agency presentations, (~~iii~~iv) ~~furnishing Purchaser~~ consent to the use of the Company’s and its Subsidiaries’ logos to the extent customary in connection with marketing the 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 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 their advisors), and cause its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from their advisors), customary certificates (but, for the avoidance of doubt, excluding any certificate 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 guarantees and other matters ancillary to the Financing as may be reasonably requested by Parent as necessary and customary in connection with the Financing, (vi) assist in the preparation of and entering into one or more credit agreements and other loan documents, underwriting or note purchase agreements, indentures, currency or interest hedging agreements, or other agreements; provided, however, that no obligation of the Company or any of its Subsidiaries under any such agreements shall be effective until the Effective Time, (vii) use its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including using reasonable best efforts to provide customary comfort letters to the underwriters in connection with the initial purchase of any securities in connection with the Financing and to provide customary consents to inclusion of their audit reports in registration statements of the Company, (viii) provide authorization letters to the Financing Sources authorizing the ~~Required Information;~~ distribution of information to prospective lenders or investors and ~~(iv) facilitating Purchaser’s preparation of documentation with respect~~ containing a representation to the ~~pledging~~ Financing Sources that the public side versions of ~~collateral~~such documents, if ~~applicable. In addition~~any, ~~Seller will~~ do not include material non-public information about the Company or its Affiliates or securities, (ix) use its reasonable best efforts to ~~provide to Purchaser and~~ facilitate contact between the Financing Sources and the ~~Required Information in a manner~~ principal existing lenders of the Company, and (x) cooperate reasonably with Parent’s Financing Sources’ due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company; provided that, ~~taken as a whole~~until the Effective Time occurs, ~~does not contain~~ neither the Company nor any ~~untrue statement~~ of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoingits Subsidiaries, ~~(i) none of ▇▇▇▇▇▇, Seller or~~ nor any of their respective ~~Affiliates~~ officers or ~~other Representatives~~ directors, as the case may be, shall (1) be required to pay any commitment or other similar fee, ~~provide~~ (2) enter into any ~~security~~definitive agreement or have any liability or any obligation under any certificate, ~~execute any~~ document, ~~make~~ instrument, credit agreement or any ~~representations~~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), ~~provide any indemnification or~~ (3) unless promptly reimbursed by Parent, be required to incur any other ~~expense or Liability~~ expenses in connection with the Financing (or any alternative financing that Parent may raise in connection with the ~~cooperation~~ transactions contemplated by this ~~Section 6.13(d),~~ Agreement) or (ii4) ~~none~~ be required to take any action in their capacity as a director of ~~▇▇▇▇▇▇, Seller~~ the Company or any of its Subsidiaries with respect to the Financing (or any alternative financing) (provided that the Company shall cooperate with Parent, if requested by Parent, to appoint Parent’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Financing as of the Closing); provided, further, that all non-public or otherwise confidential information regarding the Company obtained by Parent, HoldCo or their ~~respective Affiliates or other~~ Representatives pursuant to this Section 6.14 shall be ~~required~~ kept confidential in accordance with the Confidentiality Agreement, except that Parent and HoldCo shall be permitted to ~~provide any solvency opinion or legal opinion or other opinion of counsel~~disclose such customary and reasonable information to potential syndicate members during syndication, ~~or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser~~ subject to customary confidentiality undertakings by such potential syndicate members. Parent shall promptly, upon request by ~~▇▇▇▇▇▇ or Seller~~the Company, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ the Company for all ~~out-of-~~reasonable and documented out of pocket ~~fees,~~ costs ~~and expenses incurred by any of them~~ (including reasonable attorneys’ ~~fees and other fees and expenses as incurred~~fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with ~~the cooperation contemplated by~~ their respective obligations pursuant to, and in accordance with, this Section ~~6.13(d)~~ 6.14, and shall indemnify and hold harmless ~~▇▇▇▇▇▇~~the Company, ~~Seller~~ its Subsidiaries and their respective ~~Affiliates~~ Representatives from and against any and all ~~Liabilities~~ damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution arrangement of the Financing ~~or execute or deliver~~ and any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information used in connection therewith (other than information provided ~~to Purchaser~~ by the Company or any of its ~~Affiliates~~ Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section ~~6.13(d~~6.14(b). In the event that the Commitment Letter or the Definitive Agreements are amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing in accordance with Section 6.14(a), or if Parent substitutes other debt or equity financing for all or a portion of the Financing in accordance with Section 6.14(a), the Company shall comply with its covenants in the foregoing provisions of this Section 6.14(b) ~~shall be subject~~ with respect to the ~~Confidentiality Agreement~~ Commitment Letter or the Definitive Agreements, as applicable, as so amended, replaced, supplemented or otherwise modified and ~~Section 6.04~~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, but only to the extent that any such cooperation is not materially more burdensome to the Company, its Subsidiaries or their respective Representatives, as applicable. (ec) ~~In no event~~ It is agreed by the parties that Parent shall not be obligated to (i) obtain alternative financing on terms materially less favorable in the ~~receipt~~ aggregate to Parent than the terms and conditions set forth in the Commitment Letter or ~~availability~~ (ii) (A) issue any equity securities, (B) except in connection with accounts receivable financings, working capital improvements and sale-leaseback arrangements and similar transactions contemplated by the Commitment Letter, divest, sell, license or otherwise dispose of (including holding separate pending such disposition) any assets, or (C) engage in any transaction similar to the ~~Financing~~transactions described in the foregoing clauses (A) and (B), ~~Alternative~~ in each case in connection with obtaining the Financing as required (it being understood, however, that nothing in this Section 6.14(c) shall limit or ~~any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser~~ reduce Parent’s obligations ~~under this Agreement~~pursuant to Section 6.04); provided that Parent’s failure, in the case of clause (i), to obtain alternative or replacement financing (regardless of the favorability or unfavorability of terms and regardless of availability), or its failure to take (or election not to take), in the case of clause (ii) any of the actions referred to in clauses (ii)(A) – (C) shall not relieve Parent from any obligation or consequence relating to a Financing Failure.

Appears in 1 contract

Sources: Merger Agreement (Talecris Biotherapeutics Holdings Corp.)

Financing. (a) ~~Purchaser~~ Parent has delivered to the Company true, complete and ~~Purchaser~~ correct fully executed copy of the Debt Commitment Letter. Parent ~~each shall use its reasonable best efforts~~ has also delivered to ~~take~~the Company true, ~~or cause to be taken, all actions~~ complete and ~~to do, or cause to be done, all things necessary, proper or advisable to obtain and to consummate~~ correct copies of any fee letter associated with the ~~Financing (or any Alternative Financing) on the terms and conditions described in the~~ Debt Commitment Letter (~~including~~ the ~~flex provisions related thereto~~“Fee Letters”), ~~subject~~ subject, in the case of each such Fee Letter, to redaction solely of pricing, other economic terms, fee amounts, “market flex” provisions or other commercially sensitive terms set forth therein that are customarily redacted in transactions of this type, none of which redactions covers terms that could (A) reduce the amount of the Debt Financing below the amount required to satisfy the Financing Uses (after taking into account all other available sources of funds) or (B) impose any ~~amendments~~ new condition precedent to the receipt of the Debt Financing or ~~modifications thereto permitted by Section 6.13(b~~otherwise adversely amend, modify or expand the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letter, in each case, in a manner that would reasonably be expected to materially impede, prevent or materially delay the Closing (the foregoing clauses (A) or (B), ~~including using its reasonable best efforts to~~ collectively, a “Debt Financing Adverse Impact”). (b) As of the date of this Agreement, (i) ~~maintain~~ the Debt Commitment Letter in ~~effect~~ the ~~Commitment Letter~~form delivered to the Company has not been amended, supplemented or modified, (ii) ~~negotiate and enter into definitive agreements with respect~~ no such amendment, supplement or modification is contemplated by Parent or, to the ~~Financing on~~ Knowledge of Parent, by the ~~terms and conditions~~ other parties thereto (~~including~~ other than to add lenders, lead arrangers, bookrunners, syndication agents or other entities who had not executed the ~~flex provisions) contained~~ Debt Commitment Letter as of the date of this Agreement or to give effect to any “market flex” provisions in the ~~Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b~~Fee Letters), (iii) ~~satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates~~ the respective commitments contained in the Debt Commitment ~~Letter~~Letter have not been withdrawn, ~~including~~ terminated, reduced or rescinded in any material respect and, to the ~~payment~~ Knowledge of the Parent, no such withdrawal, termination, reduction or rescission is contemplated and (iv) there are no side letters or Contracts to which Parent is a party or other written arrangements of any ~~commitment~~kind, ~~engagement or placement fees required as a condition~~ in each case, related to the funding of the Debt Financing that would have a Debt Financing Adverse Impact, other than as expressly set forth in the Debt Commitment Letter and (subject to Section 4.6(a) above) Fee Letters and delivered to the Company on or prior to the date hereof. (c) Parent and Merger Sub, as applicable, have fully paid any and all commitment fees or other fees in connection with the Debt Commitment Letter that are due and payable on or prior to the date hereof pursuant to the terms of the Debt Commitment Letter. (d) As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent, and, to the Knowledge of Parent, each of the other parties thereto, except, in each case, as such enforceability may be limited by ~~Purchaser~~ the Bankruptcy and Equity Exception. As of the date of this Agreement, there are no conditions precedent to the funding of the Debt Financing, other than as expressly set forth in the Debt Commitment Letter or ~~its Affiliates~~(subject to clause (a) above) the Fee Letters. As of the date of this Agreement, Parent has no Knowledge that any event has occurred which, with or without notice, lapse of time or both, would (ivi) ~~upon~~ constitute a default or breach on the part of Parent or Merger Sub or any other party thereto under the Debt Commitment Letter that would reasonably be expected to materially impede, prevent or materially delay the Closing or (ii) reasonably be expected to constitute a failure to satisfy a condition precedent to the Debt Financing. (e) As of the date of this Agreement, assuming the satisfaction or waiver of ~~such conditions~~the conditions set forth in Article VI, ~~consummate~~ Parent has no reason to believe that any of the conditions precedent to the Debt Financing contemplated by the Debt Commitment Letter will not be satisfied or that the Debt Financing will not be available to Parent and/or Merger Sub on the Closing Date in an amount (together with other available sources of funds) sufficient to satisfy the Financing ~~on or prior~~ Uses. Assuming the Debt Financing is funded in accordance with the Debt Commitment Letter (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to the maximum amount of “market flex,” including original issue discount flex provided under the Debt Commitment Letter and any related Fee Letter), Parent and Merger Sub will have at the Closing ~~Date~~funds sufficient to, when taken together with any other available sources of financing (including ~~by drawing~~ cash on ~~any interim or bridge financing facilities contemplated thereby~~hand of Parent and Merger Sub), (vi) ~~obtain such third-party consents as may~~ pay the aggregate Merger Consideration and the other payments contemplated by this Agreement, (ii) pay any and all fees and expenses required to be ~~reasonably required~~ paid at Closing by Parent and Merger Sub in connection with the Transactions and the Debt Financing, (iii) prepay or repay any outstanding Indebtedness of the Company or its Subsidiaries required to be prepaid or repaid at the Closing, and (viiv) ~~comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion~~ make all of the ~~Financing reasonably unlikely~~ other payments required to ~~occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify~~ be made at Closing by ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser Sub hereunder in connection with the ~~Financing~~ Transactions (~~provided that such requested cooperation does not unreasonably interfere with~~ the ~~ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ foregoing clauses (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and through (iv~~) facilitating Purchaser’s preparation of documentation with respect to~~ ), the ~~pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the~~ “Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are madeUses”). (df) ~~Notwithstanding~~ The obligations of Parent and Merger Sub to consummate the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with Transactions on the ~~Financing or the cooperation~~ terms contemplated by this ~~Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller~~ Agreement are not in any way contingent upon or ~~any of their respective Affiliates or other Representatives shall be required~~ otherwise subject to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors Parent’s consummation of any ~~of the foregoing~~financing arrangement, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser Parent or any of its Affiliates ~~be a condition~~ obtaining any financing (including the Debt Financing or any Alternative Financing) or the availability, grant, provision or extension of any financing to Parent or any of ~~Purchaser’s~~ its Affiliates (including the Debt Financing or ~~Purchaser Parent’s obligations under this Agreement~~any Alternative Financing).

Appears in 1 contract

Sources: Merger Agreement (Logility Supply Chain Solutions, Inc)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser Parent each~~ conditions of this Agreement (including Harsco’s compliance with Section 4.11), CD&R Investor 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 for Bullseye MergerSub to obtain ~~and~~ the Debt Financing at or prior to ~~consummate~~ the ~~Financing (or any Alternative Financing) on~~ Closing subject to the terms and conditions of, and on terms no less favorable than those described in in, the ~~Commitment Letter~~ Debt Financing Commitments (including any “flex” provisions) and the ~~flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Fee Letter, including using its reasonable best efforts to (i) except as otherwise permitted by this Section 4.10, maintain in effect the ~~Commitment Letter~~Debt Financing Commitments in accordance with the terms and subject to the conditions thereof, (ii) assist in the satisfaction on a timely basis (giving effect to the anticipated timing of the Marketing Period) of all conditions applicable to Bullseye MergerSub in obtaining the Debt Financing at the Closing set forth therein (including consummating the Equity Financing on the terms and subject to the conditions set forth in the Equity Financing Commitment at or prior to Closing), (iii) negotiate ~~and enter into~~ definitive agreements (the “Definitive Agreements”) with respect to the Debt Financing on the terms and conditions (including ~~the flex~~ any “flex” provisions) ~~contained in~~ contemplated by the ~~Commitment Letter~~Debt Financing Commitments and the Fee Letter (provided that, ~~subject~~ upon request by Harsco, CD&R Investor shall provide copies thereof to Harsco on a current basis and otherwise keep Harsco reasonably informed on a current basis of the status of its efforts to arrange the Debt Financing) and (iv) consummate the Debt Financing Commitments at or prior to the Closing Date. CD&R Investor shall give Harsco prompt written notice of (A) any material breach by any party to any ~~amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser~~ Financing Commitment of which it or its Affiliates ~~contained in~~ become aware or (B) the ~~Commitment Letter~~receipt, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice or other written communication from any financing source with respect to any breach, default, event of ~~(1) any breach or default by Purchaser or its Affiliates of the Commitment Letter~~default, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party to any Financing Commitment or pursuant to which the investors or lenders thereunder have indicated that they will not perform their obligations to make the investments or loans and other extensions of credit thereunder at or prior to the Closing. Neither CD&R Investor nor any of its Affiliates shall agree with Guarantor to, enter into any amendment, supplement or other modification of, or waive any of its rights under, the Equity Financing Commitment. Neither CD&R Investor nor any of its Affiliates shall be permitted to amend, amend and restate, assign, modify, supplement, substitute or replace any of the ~~Commitment Letter, Alternative~~ Debt Financing Commitments without the written consent of Harsco; provided that CD&R Investor or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its ~~Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not~~Affiliates may, without the ~~prior written~~ consent of ~~▇▇▇▇▇▇~~Harsco, (ix) ~~permit any termination~~amend, ~~amendment~~ amend and restate, modify supplement or ~~modification to~~replace the Debt Financing Commitments to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or (y) otherwise amend, supplement, replace, or consent to any waiver of any provision or remedy under, the ~~Commitment Letter or Fee Letters if~~ Debt Financing Commitments, so long as such ~~termination~~amendment, ~~amendment~~amendment and restatement, restatement, assignment, modification, supplement, replacement or waiver ~~or remedy~~ does not (A) ~~adds new conditions to~~ reduce the aggregate principal amount of the Financing, or (B) ~~modifies~~ impose new or additional conditions, or otherwise expand, amend or modify any ~~existing conditions~~ of the conditions, to the receipt of Debt Financing in a manner that ~~affects~~ would reasonably be expected to, (I) hinder, delay or prevent the ~~consummation~~ 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) extend or permit the extension of the Marketing Period. For the avoidance of doubt, nothing contained herein shall prevent CD&R Investor from reallocating the Debt Financing among the Term Loan Facility (as defined in the Debt Financing Commitment) and the Bridge Facility (as defined in the Debt Financing Commitment), in each 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 representation and warranties set forth in the last sentence of Section 3.6 remain true and correct. CD&R 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 are to be satisfied by actions taken at 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 4.11), in the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitments, CD&R Investor shall promptly notify Harsco and shall use its reasonable best efforts to arrange for alternative financing (an “Alternative Financing”) from alternative sources in an amount such that the aggregate funds that would be available to Buyer at the Closing will be sufficient to perform its obligations hereunder; provided that CD&R Investor shall not be required to accept any Alternative Financing that is materially less favorable to it than the Debt Financing. CD&R Investor shall promptly (upon reasonable request by Harsco) deliver to Harsco true and complete copies of all drafts of any Alternative Financing commitments and all final agreements pursuant to which any such alternative source shall have committed to provide CD&R Investor with any portion of the Debt Financing. In furtherance and not in limitation of the foregoing, in the event that (i) all or any portion of the Debt Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity structured as high yield financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does has not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agenciesbeen consummated, (ii) ~~assisting Purchaser~~ all closing conditions contained in Section 6.2 shall have been satisfied or waived (other than those conditions that by their nature are satisfied at the Closing) and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) ~~furnishing Purchaser~~ the bridge facilities described in or contemplated by the Debt Financing Commitments (or Alternative Financing obtained in accordance with this Section 4.10) are available on terms and conditions described in or contemplated by the Debt Financing ~~Sources~~ Commitments (or Alternative Financing obtained in accordance with this Section 4.10), then CD&R Investor shall consummate, or cause to be consummated, and shall use, or cause to be used, the ~~Required Information; and~~ proceeds of such bridge financing (ivor such Alternative Financing) ~~facilitating Purchaser’s preparation of documentation with respect~~ to replace such high yield financing no later than the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light last day of the ~~circumstances under which such statements are made. (d) Notwithstanding~~ Marketing Period. For purposes of this Section 4.10, Section 3.6 and Section 4.11, references to “Debt Financing” shall include the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with financing contemplated by the Debt Financing ~~or the cooperation contemplated~~ Commitments as permitted by this Section ~~6.13(d)~~4.10 to be amended, ~~(ii) none~~ modified or replaced by Alternative Financing and any financing in lieu of ~~▇▇▇▇▇▇~~the Debt Financing Commitments, ~~Seller or any of their respective Affiliates or other Representatives~~ and references to “Debt Financing Commitments” and “Fee Letter” shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses include such documents as ~~incurred) in connection with the cooperation contemplated~~ permitted by this Section ~~6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇~~4.10 to be amended, ~~Seller and their respective Affiliates~~ modified or replaced, in each case from and ~~against~~ after such amendment, modification or replacement and any ~~and all Liabilities incurred by any of them in connection with the Financing or the cooperation~~ analogous documents contemplated by ~~this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of~~ the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04immediately preceding sentence. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Purchase Agreement (Harsco Corp)

Financing. (a) ~~Purchaser and Purchaser Parent each~~ Prior to the Closing or earlier termination of this Agreement in accordance with ARTICLE IX, Buyer 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~~ (taking into account the anticipated timing of the Extension Period if any Natural Disaster Event occurs) to obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing) on the terms~~ and ~~conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~consummate all Financing transactions as promptly as possible, including using its reasonable best efforts to (i) to maintain in effect the Commitment ~~Letter~~Letter (or following entry into definitive documents in respect thereof, such definitive documents), (ii) ~~negotiate and enter into definitive agreements with respect~~ to satisfy or obtain a waiver of the ~~Financing on the terms and~~ conditions ~~(including the flex provisions) contained~~ to funding applicable to Buyer in the Commitment ~~Letter~~Letter that are within the control of Buyer (or following entry into such definitive documents, ~~subject to any amendments or modifications thereto permitted by Section 6.13(b~~such definitive documents), (iii) ~~satisfy on a timely basis all conditions applicable~~ to ~~Purchaser or~~ enforce its ~~Affiliates contained in~~ rights under the Commitment ~~Letter~~Letter (or following entry into definitive documents, ~~including the payment of any commitment, engagement or placement fees required as a condition~~ such definitive documents) to cause the Financing Sources to comply with their obligations under the Commitment Letter (or definitive documents, as applicable) and ~~due and payable by Purchaser or its Affiliates,~~ to fund the Financing (iv) ~~upon the satisfaction or waiver of such conditions, consummate the Financing on or prior~~ to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment ~~Letter. If Purchaser~~ Letter (or ~~Purchaser Parent becomes aware of~~ following entry into such definitive documents, such definitive documents) and (v) to negotiate and enter into any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than definitive documentation required by the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter; provided that subject to the proviso below, ~~Alternative Financing~~ Buyer may agree to or ~~definitive~~ permit any amendment, replacement (with debt financing ~~agreements related thereto~~commitments or equity financing commitments), ~~(2)~~ supplement or other modification of, or waive any ~~known breach~~ of its rights under or ~~default by any party (other than Purchaser or its Affiliates) of~~ terminate, the Commitment ~~Letter~~Letter (or following entry into such definitive documents, ~~Alternative Financing or~~ such definitive documents), including to add additional financing ~~agreements related thereto~~providers, ~~(3) any purported termination or repudiation by any party of the Commitment Letter~~lenders, ~~Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter~~arrangers and agents, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in ~~this Agreement, Purchaser and Purchaser Parent shall not~~each case, without ~~the~~ Sellers’ prior written ~~consent of ▇▇▇▇▇▇~~consent; provided, ~~(i)~~ further that notwithstanding the foregoing proviso, Buyer shall not permit any ~~termination~~amendment, ~~amendment~~ replacement, supplement or other modification toof, or any waiver of any provision or remedy under, the Commitment Letter (or ~~Fee Letters if~~ following entry into such ~~termination~~definitive documents, ~~amendment, modification, waiver or remedy~~ such definitive documents) that (A) ~~adds~~ would reduce the amount of the Financing such that the aggregate funds that would be available to Buyer at the Closing, when taken together with other sources of funds available to Buyer, would not be sufficient to satisfy Buyer’s obligations to pay the Purchase Price in accordance with ARTICLE II, (B) imposes new or additional conditions (or otherwise expands any of the conditions to the Financing~~, (B~~) ~~modifies any existing conditions~~ to ~~the Financing in a manner that affects the consummation of all or any portion~~ receipt of the Financing ~~to below a level that~~ amounts which would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to ~~prevent, impede~~ prevent or materially delay ~~in any material respect~~ the consummation of the Closing or the ~~Transactions~~availability of the Financing at the Closing, or (iiC) ~~undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could~~ otherwise would reasonably be expected to prevent or materially ~~impair,~~ delay ~~or prevent~~ the consummation of the Closing. The foregoing restrictions shall not apply to the implementation of any “flex” provisions set forth in the Commitment Letter. Buyer shall promptly deliver to Sellers copies of any such amendment, modification, supplement or replacement of the Commitment Letter (or following entry into such definitive documents, such definitive documents). Without limiting the generality of the foregoing, prior to the Closing or earlier termination of this Agreement in accordance with ARTICLE IX, Buyer shall give Sellers prompt notice (x) of the receipt of any notice or other communication, in each case from the Financing Sources with respect to any actual or potential material breach, material default, termination or repudiation by any party to the Commitment Letter of any provisions of the Commitment Letter (or following entry into definitive documents, such definitive documents) and (y) if at any time for any reason Buyer believes that it will not be able to obtain any portion of the Financing, on the terms and conditions, in the manner or from the Financing Sources contemplated by the Commitment Letter (or following entry into such definitive documents, such definitive documents), required so that the aggregate funds that would be available to Buyer at the Closing, when taken together with other sources of funds available to Buyer, are sufficient to satisfy Buyer’s obligations to pay the Purchase Price in accordance with Section 2.2. If any ~~Alternative~~ portion of the Financing ~~contemplated by~~ becomes unavailable, regardless of the reason therefor (and such portion is required so that the aggregate funds that would be available to Buyer at the Closing, when taken together with other sources of funds available to Buyer, are sufficient to satisfy Buyer’s obligations to pay the Purchase Price in accordance with Section 2.2), Buyer shall use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative financing from the same or other sources in an amount sufficient, when taken together with other sources of funds available to Buyer, to satisfy Buyer’s obligations to pay the Purchase Price in accordance with Section 2.2 on terms that would not reasonably be expected to prevent or materially delay the consummation of the Closing. For the purposes of this Agreement, the terms “Financing” and “Commitment Letter” shall be deemed to include any ~~new debt~~ alternative financing, and any financing commitment ~~letter~~or definitive financing agreement with respect to any alternative financing, arranged in compliance herewith and any amendments, modifications, replacements or supplements thereto. Prior to the Closing or earlier termination of this Agreement in accordance with ARTICLE IX, Buyer shall promptly after execution thereof, provide copies of any such replacement or alternative financing documents to Sellers. (cb) Prior to the ~~Closing~~Closing or earlier termination of this Agreement in accordance with ARTICLE IX, each Seller shall use, and ~~▇▇▇▇▇▇ shall~~shall cause each of the Transferred Companies to use, ~~at Purchaser’s cost and expense, use~~ its commercially reasonable ~~best~~ efforts to, and to cause its and their respective Representatives to, provide reasonable and customary cooperation requested by Buyer in connection with Buyer consummating the Financing at the sole cost and expense of Buyer, including the following: (i) providing Buyer (A) the financial statements and other financial information set forth in Section 4.7(a), (B) the financial statements and other financial information set forth in Section 6.12 and (C) the financial and other pertinent information, documents and materials regarding the Transferred Companies and the Transferred Business set forth in Section 6.1(a); (ii) assisting with the preparation of customary offering documents for the Financing (including pro forma financial statements and any customary information memorandum, private placement memorandum, prospectus or information memorandum) and reasonably cooperating with marketing efforts for the Financing, including participation by Key Employees in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing and providing due diligence materials and other information reasonably required by the lenders, underwriters, initial purchasers or investors in respect of any Financing, or their legal advisers, in connection with their due diligence investigation of the Transferred Companies and the Transferred Business in connection with the Financing; (iii) providing due diligence materials and other information reasonably required by the lenders, underwriters, initial purchasers or investors in respect of any Financing, or their legal advisers, in connection with their due diligence investigation of the Transferred Companies and the Transferred Business with respect to ~~Purchaser such cooperation~~ United States Office of Foreign Asset Control, sanctions Law, United States Foreign Corrupt Practices Act and cybersecurity matters; (iv) providing all documentation and other information about the Transferred Companies and the Transferred Business as is reasonably requested by ~~Purchaser~~ the lenders, underwriters, initial purchasers or investors in respect of any Financing with respect to applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act; (v) assisting in the preparation of one or more credit agreements, indentures or other customary agreements, as well as any pledge and security documents and intercreditor agreements, and other definitive financing documents, hedging documents, collateral filings or other certificates or documents as may be reasonably required by the lenders; (vi) complying with publicity guidelines with respect to the offering of any high yield debt securities by Buyer (or an Affiliate or related entity of Buyer), including refraining from public comment regarding any such offering without the prior consent of Buyer except as may be required by Law or stock exchange rule; (vii) obtaining the assistance of its accountants in issuing customary representation letters to auditors and obtaining consents and customary comfort letters of independent accountants (including “negative assurance” comfort); (viii) causing the Transferred Companies to execute and deliver customary definitive financing agreements, documents and certificates to the extent reasonably requested by Buyer and otherwise facilitating the pledging of collateral reasonably necessary to secure the Financing; provided that the effectiveness of any definitive documentation executed by the Transferred Companies shall be subject to the occurrence of the Closing; and (ix) providing authorization letters from Sellers’ outside accounting firms to the Financing Sources authorizing the distribution of Financial Statement information to prospective Financing Sources. Nothing in Section 6.10(b) shall require such cooperation to the extent it would (i) unreasonably disrupt the conduct of the business or operations of any Seller or any of its Affiliates, (ii) require any Seller or any of its Affiliates to pay any commitment or similar fee or incur any other cost or expense that is not reimbursed by Buyer or otherwise incur any liability or give any indemnities, in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, ; (iii) ~~furnishing Purchaser and~~ require any Seller or any of its Affiliates to take any action that would conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the ~~Financing Sources the Required Information~~certificate of incorporation or by-laws or other comparable organizational documents of such Seller or any of its Affiliates, any applicable Laws or any Contract; ~~and~~ or (iv) ~~facilitating Purchaser’s preparation of documentation with respect~~ require any Seller to ~~the pledging of collateral~~agree to any amendment or modification to this Agreement or any Ancillary Document, ~~if applicable~~Post-Closing Contract or Post-Signing Affiliate Arrangement. In addition, nothing herein shall require any Seller ~~will use~~ or any of its ~~reasonable best efforts~~ Affiliates or any of its Representatives to ~~provide~~ deliver legal opinions. In furtherance of and without limitation to ~~Purchaser~~ the immediately preceding sentence, nothing herein shall require any Seller or any of its Affiliates (other than the Transferred Companies and then only if subject to the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light occurrence of the ~~circumstances under which~~ Closing) to enter into any agreement (or require their respective boards of directors or equivalent governing bodies to approve any such ~~statements are made.~~ agreement) in connection with the Financing. Buyer shall promptly, upon request by Sellers, reimburse Sellers for all reasonable third party costs and expenses (dincluding reasonable attorneys’ and accountant fees) ~~Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller~~ incurred by Sellers or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective ~~Affiliates or other~~ Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation ~~contemplated by this Section 6.13(d)~~ in respect of the Financing required hereunder and shall indemnify and hold harmless ~~▇▇▇▇▇▇~~Sellers, ~~Seller and~~ each of their respective Affiliates and each of their respective Representatives from and against any and all ~~Liabilities~~ Losses suffered or incurred by any of them in connection with the Financing and any information used in connection therewith and any cooperation by Sellers hereunder, other than to the extent that any of the foregoing arises from the willful misconduct, Fraud or ~~the cooperation contemplated by this Section 6.13(d) and (iv) none~~ gross negligence or any of ~~▇▇▇▇▇▇~~Sellers, ~~Seller~~ their Affiliates or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04Representatives. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Stock Purchase Agreement (Liberty Latin America Ltd.)

Financing. ~~(a) Purchaser and Purchaser Parent~~ a. Notwithstanding anything to the contrary contained in this Agreement, each ~~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 obtain and to consummate~~ of the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to parties hereto: (i) ~~maintain~~ agrees that it will not bring or support any person in ~~effect~~ any action, suit, proceeding, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any of lender under any existing loan facility of Parent or Merger Sub or provider of any commitment for any loan facility to Parent or Merger Sub (the ~~Commitment Letter~~“Financing Sources”) in any way relating to this Agreement or any of the transactions contemplated by this Agreement, including, but not limited to, any dispute arising out of or relating in any way to any commitment letters or any loan agreement related to any financing, or financing commitment, provided or to be provided by any Financing Source (any such financing a “Financing” and any such agreement or commitment a “Facility Commitment”) or the performance thereof or the financings contemplated thereby, in any forum other than the federal and New York state courts located in the Borough of Manhattan within the City of New York; (ii) ~~negotiate~~ agrees that, except as specifically set forth in any Facility Commitment, all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any of the Financing Sources in any way relating to any Facility Commitment or the performance thereof or the financings contemplated thereby, shall be exclusively governed by, and ~~enter into definitive agreements with respect~~ construed in accordance with, the internal laws of the State of New York, without giving effect to principles or rules or conflict of laws to the ~~Financing on~~ extent such principles or rules would require or permit the ~~terms~~ application of laws of another jurisdiction; and ~~conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b),~~ (iii) ~~satisfy on~~ hereby irrevocably and unconditionally waives any right such party may have to a ~~timely basis all conditions applicable to Purchaser or its Affiliates contained~~ trial by jury in ~~the Commitment Letter, including the payment~~ respect of any ~~commitment~~litigation (whether in law or in equity, ~~engagement~~ whether in contract or ~~placement fees required as a condition~~ in tort or otherwise) directly or indirectly arising out of or relating in any way to any Facility Commitment or the ~~Financing and due and payable by Purchaser~~ performance thereof or ~~its Affiliates, (iv) upon~~ the ~~satisfaction or waiver of such conditions, consummate the Financing on or prior~~ financings contemplated thereby. b. Prior to the Closing Date, if Parent wishes to borrow cash to fund the Merger Consideration from a reputable bank, the Company shall, at Parent's sole expense, cause its Subsidiaries to, and shall use commercially reasonable efforts to cause its Representatives (including ~~by drawing on any interim or bridge~~ its legal and accounting Representatives) to, provide reasonable cooperation in connection with the arrangement of the such financing ~~facilities contemplated thereby, (v) obtain such third-party consents~~ as may be reasonably requested by Parent, including without limitation (i) providing reasonable and customary due diligence materials to the sources of such financing and any rating agencies, including financial statements and financial and other information, as soon as reasonably practicable after request therefor, that are reasonably and customarily required in connection with such financing; (ii) assisting Parent with the ~~Financing~~preparation of rating agency presentations and similar documents and materials in connection with the financing and permitting the use of the Company name and logo in the offering materials; (iii) participating in a reasonable number of meetings, presentations and due diligence sessions in connection with the financing, (iv) assisting in the preparation of customary offering materials and private placement memorandum and/or bank information memorandum with respect to the financing, as may be reasonably requested by Parent; and (viv) ~~comply~~ facilitating and providing pertinent information for the pledging of collateral for the financing (the “Required Financial Information”); provided, that: (1) such requested assistance and cooperation does not unreasonably interfere with ~~its obligations under~~ the ~~Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion~~ ongoing operation of the ~~Financing reasonably unlikely to occur in~~ Company and its Subsidiaries and does not create undue burden for the ~~manner or from~~ operation of the ~~sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two~~ Company; (2) ~~Business Days) notify ▇▇▇▇▇▇ and Seller and~~ the Company shall ~~use its reasonable best efforts~~ not be required to ~~arrange as promptly as practicable~~ pay any ~~such portion from alternative sources on terms and conditions not materially less favorable~~ commitment or other fee or incur any liability or expense in ~~the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have~~ connection with any ~~of the effects prohibited pursuant to amendment by Section 6.13(b) (such~~ financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, ; (3) the effectiveness of any ~~purported termination or repudiation~~ documentation executed by ~~any party~~ the Company shall be subject to the consummation of the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto or~~ Closing Date; (4) the ~~receipt of notice of~~ Company shall not be required to provide access to or disclose information to any ~~material dispute~~ party or ~~disagreement between~~ entity unless such person or ~~among the parties~~ entity is bound by confidentiality obligations reasonably satisfactory to the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto,~~ Company; and (B5) ~~upon request, otherwise keep ▇▇▇▇▇▇ and Seller~~ the Company shall not be required to provide access to or disclose information where the Company reasonably ~~informed~~ determines that such access or disclosure would jeopardize the attorney-client privilege of the ~~status~~ Company or any of ~~Purchaser’s and~~ its ~~Affiliates’ efforts~~ Subsidiaries or contravene ant Law or any contract to ~~arrange~~ which the ~~Financing~~ Company or ~~Alternative Financing. (b)~~ any of its Subsidiaries is a party. Notwithstanding anything to the contrary in this Agreement, ~~Purchaser~~ the Required Financial Information required to be delivered pursuant to this Section 6.11(e) shall be prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the absence of footnotes and ~~Purchaser~~ normal, recurring year-end adjustments). c. Parent shall, and shall ~~not, without the prior written consent of ▇▇▇▇▇▇~~cause its affiliates to, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, promptly upon request by ~~▇▇▇▇▇▇ or Seller~~the Company, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ the Company for all reasonable and documented out-of-pocket ~~fees,~~ costs ~~and expenses~~ incurred by ~~any of them (including reasonable attorneys’ fees and other fees and expenses as incurred)~~ the Company in connection with ~~the~~ cooperation ~~contemplated by this~~ provided for in Section ~~6.13(d~~6.11(a) (such reimbursement to be made promptly and ~~shall~~ in event within three business days of delivery of reasonably acceptable documentation evidencing such expenses); and (ii) indemnify and hold harmless ~~▇▇▇▇▇▇, Seller~~ the Company and ~~their respective Affiliates~~ its Representatives from and against any and all ~~Liabilities~~ Losses (as defined below) suffered or incurred by ~~any of~~ them in connection with the ~~Financing~~ arrangement of any financing, and any information utilized in connection therewith. All non-public or otherwise confidential information regarding the ~~cooperation contemplated~~ Company and its Subsidiaries obtained by ~~this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇~~Parent, ~~Seller~~ its affiliates or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates Representatives pursuant to this Section ~~6.13(d)~~ 6.11 shall be subject to the terms of the Confidentiality ~~Agreement and Section 6.04~~Agreement. Loss shall mean any include any loss, damage, injury, liability, claim, demand, settlement, judgment, award, fine, penalty, tax, fee (including reasonable attorney's fees), charge, cost (including cost of investigation) or expense of any nature. ~~(e) In no event shall~~ d. For the ~~receipt~~ avoidance of doubt, the obligation of Parent and Merger Sub to close the transactions contemplated by this Agreement is not conditioned upon the consummation of any financing and, accordingly, the parties agree that a failure of Parent and Merger Sub to close the transactions contemplated by this Agreement resulting from a failure or ~~availability~~ inability to consummate any financing constitutes a breach for purposes of ~~the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under~~ this Agreement, notwithstanding compliance by Parent with Section 6.11.

Appears in 1 contract

Sources: Merger Agreement (Athenahealth Inc)

Financing. (a) ~~Purchaser~~ Each of the Equity Investor, Parent and ~~Purchaser Parent each~~ Acquisition Sub shall ~~use~~ take or cause to be taken, and shall cause their respective Affiliates and its ~~reasonable best efforts~~ and their respective Representatives to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and to consummate the Financing (at or ~~any Alternative Financing)~~ prior to the Closing on the terms and subject to the conditions ~~described~~ set forth in the ~~Commitment Letter~~ Financing Commitments (including ~~the flex provisions related thereto), subject to~~ any ~~amendments or modifications thereto permitted by Section 6.13(b~~“flex” provisions), including ~~using its reasonable best efforts to~~ executing and delivering all such documents and instruments as may be reasonably required thereunder and: (i) ~~maintain~~ complying with and maintaining in full force and effect the ~~Commitment Letter~~Financing and the Financing Commitments (and, ~~(ii~~once entered into, the Financing Agreements) ~~negotiate~~ in accordance with the terms and ~~enter~~ conditions thereof and negotiating and entering into definitive financing agreements with respect to the Debt Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Debt Commitment ~~Letter~~ Letters (including any “flex” provisions) and ~~that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b~~containing no (I) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to ~~the Financing, (B) modifies any existing conditions to the Financing in a manner that affects~~ the consummation of all or any portion of the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ other than the ~~Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects~~ conditions set forth in ~~any material respect the ability of Purchaser to enforce its rights against other parties~~ Exhibit E to the Bank Debt Commitment Letter or Exhibit B to the ~~definitive agreements~~ Margin Loan Commitment Letter, as the case may be, in ~~respect thereof~~each case, as in effect on the date hereof, or (DII) provisions that could ~~otherwise~~ reasonably be expected to prevent, ~~impede~~ impede, delay or ~~delay in~~ adversely affect the availability of any ~~material respect~~ of the Debt Financing or the consummation of the ~~Closing or~~ Merger and the ~~Transactions~~other transactions contemplated by this Agreement (such definitive agreements, or the “Financing Agreements”) so that the Financing Agreements are in full force and effect no later than the Closing; (ii) ~~undertake~~ satisfying, or obtaining the waiver of, as promptly as practicable and on a timely basis (and in any ~~merger~~event, ~~acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected~~ no later than the Closing) all conditions to ~~materially impair, delay or prevent consummation of~~ the Debt Financing contemplated by the Debt Commitment ~~Letter~~ Letters and Financing Agreements that are within its or their control, including, without limitation: (A) on or prior to the Closing Date, transferring Tesla Shares to the Margin Loan Borrower and causing the Margin Loan Borrower to credit to collateral accounts pledged to the applicable Debt Financing Sources in respect of the Margin Loan Financing and held through the facilities of DTC, in each case, sufficient Tesla Shares, which shall be free from all transfer restrictions and restrictive conditions (other than permitted restrictions contemplated under the Financing Documents in respect of the Margin Loan Financing), to cause the LTV Ratio (as defined in the Margin Loan Commitment Letter) not to exceed 20% as of the Closing Date; (B) ensuring the absence of (1) any default or event of default (or any ~~Alternative~~ equivalent term) under the Financing ~~contemplated by~~ Agreements in respect of the Margin Loan Financing, or (2) any ~~new debt commitment letter.~~Potential Adjustment Event or Mandatory Prepayment Event (in each case, under and as defined in the Margin Loan Commitment Letter); (cC) ~~Prior to~~ (x) maintaining the ~~Closing, Seller~~ Margin Loan Borrower as a wholly owned subsidiary of Parent and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, ~~Seller~~ and (y) causing the organizational documents of the Margin Loan Borrower not to contain, and causing the Margin Loan Borrower not to enter into any Contract, that would (1) impede or prevent the Margin Loan Borrower or any of its Affiliates from enforcing or the Margin Loan Borrower’s rights in respect of the Debt Financing Sources under the Margin Loan Commitment Letter or any Financing Agreement in respect thereof or (2) impede or prevent the Margin Loan Borrower or any of its Affiliates from applying the proceeds of the loans to pay any Funding Obligations; and (D) causing ▇▇▇▇ ▇▇▇▇ to (1) fully and unconditionally guarantee all obligations of the Margin Loan Borrower under the Margin Loan Financing to the extent required to consummate the Margin Loan Financing and (2) at all times through and including the Closing Date to own (beneficially and of record), directly or indirectly, all of the outstanding equity interests of, and Control, the Margin Loan Borrower; (iii) accepting (and complying with) to the fullest extent all “flex” provisions contemplated by the Debt Commitment Letters; (iv) causing the Financing Sources to fund the Financing no later than the Closing (including by enforcing its rights under the Debt Commitment Letters and/or Financing Agreements, as applicable). (b) None of the Equity Investor, Parent, Acquisition Sub or the Margin Loan Borrower or any of their respective Affiliates shall agree to or permit any amendment, supplement, modification or replacement of, or grant any waiver of, any condition, remedy or other ~~Representatives shall~~ provision under any Financing Commitment or Financing Agreement, or permit any Financing Agreement to contain any provision, without the prior written consent of the Company, if such amendment, supplement, modification, replacement, waiver or provision would or would reasonably be ~~required~~ expected to ~~pay any commitment~~ (i) reduce (or ~~other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with~~ would reasonably be expected to have the effect of reducing) the aggregate amount of the Financing (or the ~~cooperation~~ cash proceeds available therefrom) from that contemplated by ~~this Section 6.13(d)~~the Financing Commitments delivered as of the date hereof, (ii) ~~none~~ impose new or additional conditions or contingencies to the Financing or otherwise expand, amend or modify any of ~~▇▇▇▇▇▇~~the existing conditions to the receipt of the Financing, ~~Seller~~ or otherwise add, expand, amend or modify any other provision of, or remedies under, the Financing Commitments as in effect on the date hereof, in a manner that would reasonably be expected to delay, impede or prevent the consummation or funding of the Financing (or satisfaction of the conditions to obtaining any portion of the Financing) at the Closing or impair the ability or likelihood of the Closing or impair the ability of Parent and/or Acquisition Sub to timely consummate the Merger and the other transactions contemplated by this Agreement, (iii) make it less likely that any portion of the Financing would be funded (including by making the satisfaction of the conditions to obtaining any portion of the Financing less likely to occur) or otherwise prevent, impede or delay or impair the availability of any of the Financing or impair the ability or likelihood of the Closing or Parent and/or Acquisition Sub to timely consummate the transactions contemplated by this Agreement (including by requiring any additional filings, consents or approvals of any Governmental Authority) or (iv) adversely impact the ability of Parent, Acquisition Sub or the Margin Loan Borrower, or any of their respective ~~Affiliates or other Representatives shall be required~~ Affiliates, to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and enforce their respective ~~Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and~~ rights against the other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with parties to the Financing Commitments or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing~~, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.~~

Appears in 1 contract

Sources: Merger Agreement

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser Parent each~~ conditions herein provided, from the date hereof until the earlier of the termination of this Agreement in accordance with its terms and the Closing Date, Buyer shall use its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange for Buyer to obtain ~~and to consummate~~ the proceeds of the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the ~~Commitment~~ Financing Commitments (provided that Buyer may (x) amend, modify, supplement, restate, assign, substitute or replace the Financing Commitments and any related Fee Letter to add or replace lenders, collateral agents or similar entities or (y) otherwise amend, modify, supplement, restate, assign, substitute or replace or consent to any waiver of any provision or remedy under, the Financing Commitments in a manner that would not (i) reduce the aggregate amount of the proceeds to Buyer of the Financing (including by increasing the ~~flex provisions related thereto~~amount of fees to be paid or original issue discount), ~~subject~~ (ii) reduce the amount of the Equity Financing unless (A) the Debt Financing is increased by, or other sources of financing are available to Buyer in, a corresponding amount no later than the date of such amendment, modification, supplementation, restatement, assignment, substitution, replacement or waiver, (B) such reduction is expressly conditioned upon the consummation of the Debt Financing or other financing at such increased amount at the Closing, and (C) after giving effect thereto, the representations in the sixth sentence of Section 4.4 hereof remain accurate, (iii) impose new or additional conditions, or expand any ~~amendments~~ existing conditions, to the receipt of the proceeds of the Financing or ~~modifications thereto permitted by Section 6.13(b~~otherwise amend, modify, supplement, restate, assign, substitute, replace or waive any other provision of the Financing Commitments, in each case, in a manner that would reasonably be expected to delay or prevent or make less likely to occur the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (iv) adversely affect the ability of Buyer or the Seller Representative, as applicable, to enforce its rights against other parties to the Equity Financing Commitments or the definitive agreements relating to the Equity Financing), including using its commercially reasonable ~~best~~ efforts to (iA) maintain in effect the ~~Commitment Letter~~Financing Commitments in accordance with the terms and subject to the conditions thereof (subject to Buyer’s right to amend, modify, supplement, restate, assign, substitute or replace the Financing Commitments in accordance herewith), (iiB) satisfy on a timely basis (taking into account the anticipated timing of the satisfaction of the condition set forth in Section 7.1(b)) all conditions applicable to Buyer’s obtaining the Financing at the Closing set forth therein to the extent within Buyer’s control, (C) negotiate and enter into definitive agreements with respect to the Financing on ~~the~~ terms and conditions no less favorable to Buyer than those described and contemplated by the Financing Commitments and the Fee Letter (~~including~~ and, upon the ~~flex provisions) contained in~~ reasonable request of the ~~Commitment Letter~~Seller Representative, ~~subject~~ update the Seller Representative of the status of its efforts to ~~any amendments or modifications thereto permitted by Section 6.13(b~~arrange the Financing), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (ivD) upon the satisfaction or the waiver of the conditions set forth in such ~~conditions~~definitive agreements and herein, consummate the ~~Financing~~ financing on ~~or prior to~~ the Closing Date, including using its (and causing its controlled Affiliates to use) best efforts to cause the persons committed to fund the Financing to so fund the Financing at the Closing and enforce its rights under the Financing Commitments and the definitive agreements in respect of the Debt Financing, including by ~~drawing~~ seeking specific performance of the parties thereunder as and only to the extent permitted under Section 11.10 and (E) comply in all material respects with its covenants and other obligations under the Financing Commitments. (b) Buyer shall keep the Seller Representative informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Seller Representative, upon request, copies of the definitive agreements and any ~~interim~~ other material documents relating to the Debt Financing. Buyer shall give the Seller Representative prompt notice of (i) any termination of any Debt Financing Commitment, any definitive agreement in respect of the Debt Financing or ~~bridge financing facilities contemplated thereby~~any portion of the Debt Financing, (vii) ~~obtain such third-~~any material breach, default, termination or repudiation of any provisions of the Debt Financing Commitment or any material agreements entered into in respect thereof by any party ~~consents as may be reasonably required in connection with the Financing~~thereto, of which Buyer becomes aware, and (viiii) ~~comply with its obligations under~~ the ~~Commitment Letter. If Purchaser or Purchaser Parent becomes aware~~ receipt of any written notice or other written communication from any party to any of the Financing Commitments with respect to any material breach, default, termination or repudiation of any provisions of the Debt Financing Commitment or any definitive agreements entered into in respect thereof. In the event ~~or circumstance that makes procurement of~~ any portion of the Financing ~~reasonably unlikely to occur in~~ becomes unavailable on the ~~manner or from~~ terms and conditions contemplated by the ~~sources contemplated in the Commitment Letter~~Financing Commitments, ~~Purchaser~~ Buyer shall promptly ~~(and in any event within two (2) Business Days)~~ notify ~~▇▇▇▇▇▇ and Seller~~ Sellers and shall use its reasonable best efforts ~~to arrange~~ to, as promptly as ~~practicable any such portion~~ reasonably practicable, arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources in an amount such that the aggregate funds that would be available to Buyer at the Closing will be sufficient to pay all amounts contemplated by this Agreement to be paid by it at the Closing and to perform its obligations hereunder; provided that Buyer shall not be required to arrange for or obtain any such alternative financing on terms and conditions ~~not materially~~ that are less favorable ~~in the aggregate~~ to ~~Purchaser~~ Buyer and its Affiliates than the terms ~~and conditions set forth~~ contained in the Debt Financing Commitment ~~Letter~~ and ~~that would not have any~~ the Fee Letter. Buyer shall promptly deliver to Sellers true, complete and correct copies of ~~the effects prohibited~~ all agreements pursuant to ~~amendment by Section 6.13(b) (~~which any such ~~financing, the “Alternative Financing”). Purchaser~~ alternative source shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties have committed to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or provide Buyer with any portion of the ~~Financing~~ Financing. For purposes of this Agreement, references to ~~below a level that would impair Purchaser’s ability to consummate~~ “Financing,” “Equity Financing” and “Debt Financing” shall include the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing ~~that could reasonably be expected to materially impair, delay or prevent consummation of the Financing~~ contemplated by the ~~Commitment Letter~~ applicable Financing Commitments as permitted or ~~any Alternative~~ required by this Section 5.11 to be amended, modified, supplemented, restated, assigned, substituted or replaced and references to “Financing ~~contemplated~~ Commitments,” “Equity Financing Commitment”, “Debt Financing Commitment” and “Fee Letter” shall include such documents as permitted or required by ~~any new debt commitment letter~~this Section 5.11 to be amended, modified, supplemented, restated, assigned, substituted or replaced, in each case from and after such amendment, modification or replacement. (c) Prior to the Closing, ~~Seller and ▇▇▇▇▇▇~~ Sellers shall, ~~at Purchaser’s cost~~ and ~~expense~~shall cause each of their Affiliates (including the Transferred Companies) to, and shall use their respective reasonable best efforts ~~to, and~~ to cause its ~~Representatives~~ and their representatives to, provide to ~~Purchaser~~ Buyer such cooperation as may be reasonably requested by Buyer to assist Buyer in causing the conditions in the Financing Commitments to be satisfied and such cooperation as is otherwise necessary or reasonably requested by ~~Purchaser~~ Buyer in connection with Buyer’s obtaining the Financing in accordance with its terms. Such cooperation shall include: (~~provided~~ i) granting the Buyer’s financing sources access to the Books and Records (including cash management and accounting systems) and to any information about the Transferred Companies and the Business as Buyer may reasonably request in order to permit such Buyer’s financing sources to conduct an appropriate due diligence review of the Transferred Companies and the Business; (ii) making available to Buyer and such Buyer’s financing sources its and the Transferred Companies’ employees and representatives for participation in a customary and reasonable number of meetings, presentations and due diligence sessions; (iii) furnishing to Buyer and such Buyer’s financing sources such financial statements, financial data, audit reports and information as Buyer may reasonably request; (iv) causing the Transferred Companies to execute and deliver (or using reasonable best efforts to obtain from their advisors) such documents, Contracts (including definitive financing documents, pledge documents and security documents), certificates (including a solvency certificate from the chief financial officer of the Transferred Companies), legal opinions or other documents and instruments relating to guarantees and other matters ancillary to the Financing as may be reasonably requested by the Buyer, in each case to be effective as of or after the Closing, (v) facilitating the pledging of, and the granting, recording and perfection of security interests in, share certificates, securities and other collateral at and after the Closing, (vi) causing the Transferred Companies to take such corporate actions, effective as of or after the Closing, as shall be reasonably requested by the Buyer to permit the consummation of the Financing and to permit the proceeds thereof to be made available at the Closing, (vii) causing the Transferred Companies to deliver notices of prepayment, termination or redemption within the time periods required by the relevant agreements governing any existing Indebtedness of the Transferred Companies, and obtaining customary payoff letters, prepayment notices, Lien terminations and instruments of discharge to be delivered at Closing, to allow the payoff, discharge and termination in full on the Closing Date of all existing Indebtedness of the Transferred Companies, and (viii) furnishing the Buyer and its financing sources promptly with all documentation and other information which any lender providing or arranging the Debt Financing has reasonably requested and that such lender has determined is required by regulatory authorities in connection with such Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act. Such requested cooperation ~~does~~ shall not unreasonably interfere with the ongoing operations of ~~Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include~~ the ~~following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing~~ Sellers or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicableTransferred Companies. In ~~addition~~no event shall the Sellers, ~~Seller will use its reasonable best efforts to provide to Purchaser and~~ the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller Transferred Companies or any of their respective ~~Affiliates or other Representatives shall~~ Subsidiaries be required to (1) bear any cost or expense, pay any ~~commitment or other similar~~ fee, ~~provide~~ enter into any ~~security, execute any document, make any representations, provide any indemnification~~ definitive agreement or incur any other ~~expense or Liability~~ liability in connection with the Debt Financing prior to the Closing, in each case, except to the extent covered by the Buyer’s obligations pursuant to the terms of the immediately following sentence, (2) except for the prepayment, termination or redemption notices described in clause (vii) of this Section 5.11(c) and documents delivered pursuant to clause (viii) of this Section 5.11(c), enter into any definitive agreement in connection with the Debt Financing prior to the Closing or (3) take any actions to the extent such actions would unreasonably interfere with the ongoing business or operations of the Sellers or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser Transferred Companies. Buyer shall promptly, upon request by ~~▇▇▇▇▇▇ or Seller~~the Seller Representative, reimburse ~~▇▇▇▇▇▇, Seller and their respective Affiliates~~ the Sellers for all reasonable out-of-pocket ~~fees,~~ costs and expenses ~~incurred by any of them~~ (including reasonable attorneys’ ~~fees~~ fees) incurred by the Sellers or any of their respective Subsidiaries and ~~other fees and expenses as incurred)~~ their respective Representatives in connection with the Debt Financing, including the cooperation of the Sellers, the Transferred Companies and their respective Subsidiaries and Representatives contemplated by this Section ~~6.13(d)~~ 5.11, and shall indemnify and hold harmless ~~▇▇▇▇▇▇, Seller~~ the Sellers and their Subsidiaries and their respective ~~Affiliates~~ Representatives from and against any and all ~~Liabilities~~ Losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith, except to the extent any of the foregoing arise from (i) the gross negligence or willful misconduct of, or material breach of this Agreement by, the ~~cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇~~Sellers, ~~Seller~~ the Transferred Companies or their respective ~~Affiliates~~Subsidiaries or (ii) historical information provided, directly or ~~any Persons who are directors of any of~~ indirectly, by the ~~foregoing~~Sellers, ~~shall be required to pass resolutions~~ the Transferred Companies or ~~consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement~~ their respective Subsidiaries that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing was requested by ~~Purchaser~~ Buyer or any of its ~~Affiliates be a condition~~ Representatives or Financing Sources in connection with the arrangement of the Debt Financing. Sellers shall keep confidential and not disclose to any Person (other than their representatives, on a need-to-know basis and in connection with the transactions contemplated hereby), the Debt Finacning Commitment, the Fee Letter or the terms thereof, without prior written consent of ~~Purchaser’s~~ the Buyer, except as such Seller may be required to disclose any such information by judicial or ~~Purchaser Parent’s obligations under this Agreement~~administrative process or by other requirements of Law.

Appears in 1 contract

Sources: Stock Purchase Agreement (Tiptree Financial Inc.)

Financing. (a) ~~Purchaser~~ Subject to the terms and ~~Purchaser Parent each~~ conditions of this Agreement, Buyer shall use its reasonable best efforts (unless, with respect to ~~take~~any action, ~~or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable~~ another standard for performance is expressly provided for herein) to obtain ~~and to consummate~~ the Committed Financing (or taking into account any ~~Alternative Financing~~reductions thereof pursuant to Section 6.15(b)(I)(A)) on the terms and conditions ~~described~~ set forth in the Commitment Letter (taking into account the anticipated timing of the Marketing Period Termination Date), and Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing), such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Committed Financing (including by increasing the ~~flex provisions related thereto~~amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than any reductions permitted pursuant to Section 6.15(b)(I)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date or (y) adversely impact the ability of Buyer to enforce its rights against the other parties to the Commitment Letter in any material respect (provided that, subject to compliance with the other provisions of this Section 6.15, Buyer may amend the Commitment Letter or such definitive documents to add additional lenders, arrangers and agents). Buyer shall promptly deliver to Seller copies of any ~~amendments~~ such amendment, modification or ~~modifications thereto~~ replacement. For purposes of this Section 6.15 and Section 5.8 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source and the Marketing Period Termination Date, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter as permitted by this Section ~~6.13(b)~~6.15(a) to be amended, ~~including using~~ modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 6.15(a) to be amended, modified or replaced. (b) Buyer shall (I) use its reasonable best efforts (taking into account the anticipated timing of the Marketing Period Termination Date) to (iA) maintain in effect the Commitment ~~Letter~~Letter in accordance with the terms and subject to the conditions thereof, provided that, subject to clause (IV) of this sentence and to the penultimate sentence of this Section 6.15(b), Buyer may, without Seller’s consent, reduce the amount of the Committed Financing under the Commitment Letter to the extent that the remaining amount of the Committed Financing under the Commitment Letter after such reduction, taken together with the net cash proceeds of one or more offerings, placements, sales and/or other issuances of debt and/or equity securities of or term loans to Buyer that are placed into escrow for use solely in paying amounts payable by Buyer at the Closing pursuant to this Agreement, is no less than $10,540,000,000 less the Debt Obligations, (iiB) negotiate and enter into definitive agreements with respect to the Committed Financing contemplated by the Commitment Letter on the terms and conditions ~~(including the flex provisions)~~ contained in the Commitment ~~Letter, subject to any amendments~~ Letter (or ~~modifications thereto permitted by Section 6.13(b), (iii) satisfy~~ on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on other terms ~~and conditions~~ not materially less favorable to Buyer (or its Subsidiaries), as determined in the ~~aggregate to Purchaser and its Affiliates~~ reasonable judgment of Buyer after consultation with Seller, than the terms and conditions set forth in the Commitment Letter and that ~~would~~ do not ~~have any~~ materially impair the ability of Buyer to fund its obligations at the ~~effects prohibited pursuant~~ Closing Date), (C) satisfy all conditions to ~~amendment by Section 6.13(b)~~ funding in the Commitment Letter and such definitive agreements with respect thereto that are within its control and to consummate the Committed Financing at or prior to the Closing Date, as applicable, including using its reasonable best efforts to cause the lenders and the other persons committing to fund the Committed Financing on the Closing Date (~~such financing,~~ the “~~Alternative Financing~~Committed Financing Sources”)~~. Purchaser shall~~ , (AD) ~~give ▇▇▇▇▇▇~~ enforce its rights under the Commitment Letter and ~~Seller prompt oral~~ any definitive agreements with respect thereto and ~~written notice of~~ (1E) ~~any breach or default by Purchaser or~~ comply with its ~~Affiliates of~~ obligations under the Commitment Letter, ~~Alternative~~ (II) not use any net proceeds received and placed in escrow as contemplated in this Section 6.15(b) from any Financing ~~or definitive financing agreements~~ other than to fund amounts required to be paid by Buyer pursuant to this Agreement at Closing and fees and expenses related ~~thereto~~to the Financing and the transactions contemplated hereby, (2III) maintain cash on hand or access to other liquid sources of funding in an amount sufficient to make all payments required to be made by Buyer related to the transactions contemplated hereby, including any ~~known~~ Required Payment Amount (the amount of which, solely for this purpose, shall be estimated in the good faith judgment of Buyer from time to time, to the extent such amount is not finally determined) and (IV) not take any action that would cause the amount of the Committed Financing to be reduced to the extent that the remaining amount of the Committed Financing under the Commitment Letter after such reduction, taken together with the net cash proceeds of one or more offerings, placements, sales and/or other issuances of debt and/or equity securities of or term loans to Buyer, as contemplated by the Commitment Letter and the related fee letter, that are placed into escrow (which escrow complies with the penultimate sentence of this Section 6.15(b)) for use solely in paying amounts payable by Buyer at the Closing pursuant to this Agreement, is less than $10,540,000,000 less the Debt Obligations. The conditions for the release of funds from any escrow referred to in this Section 6.15(b) shall include no new, additional or modified conditions beyond those applicable to the Committed Financing to the extent that such new, additional or modified conditions would reasonably be expected to prevent or materially delay the Closing or the availability of the escrowed funds on the Closing Date. (c) Without limiting the generality of the foregoing, Buyer shall give Seller prompt notice (x) of any breach or default by any party to the Commitment Letter or definitive agreements relating to the Committed Financing of which Buyer has Knowledge, (~~other than Purchaser or its Affiliates~~y) of the ~~Commitment Letter~~receipt of any notice or other communication, ~~Alternative~~ in each case from any Committed Financing Source with respect to any actual or ~~definitive financing agreements related thereto~~potential material breach, ~~(3) any purported~~ material default, termination or repudiation by any party ~~of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties~~ to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or ~~Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions~~ definitive agreements relating to the ~~Financing, (B) modifies~~ Committed Financing of any ~~existing conditions~~ provisions of the Commitment Letter or definitive agreements relating to the Committed Financing ~~in a manner~~ and (z) if at any time for any reason Buyer believes that ~~affects the consummation of~~ it will not be able to obtain all or any portion of the Committed Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ on the ~~Transactions~~terms and conditions, ~~(B) reduces~~ in the ~~committed amount of~~ manner or from the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Committed Financing Sources contemplated by the Commitment Letter or definitive agreements relating to the Committed Financing. As soon as reasonably practicable after the date Seller delivers to Buyer a written request, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence resulting in any portion of the Committed Financing becoming unavailable, or if any portion of the Committed Financing otherwise becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Commitment Letter and Fee Letter, and such portion is reasonably required to effect the Closing, Buyer shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing (“Alternative Financing”) from alternative sources in an amount at least equal to the Committed Financing or such unavailable portion thereof, as the case may be (taking into account any reductions thereof pursuant to Section 6.15(b)(I)(A)), with terms and conditions not materially less favorable to Buyer (or its Subsidiaries), as determined in the reasonable judgment of Buyer after consultation with Seller, than the terms and conditions set forth in the Commitment Letter and the Fee Letter (including the flex provisions therein) and as promptly as reasonably practicable following the occurrence of such event. For the avoidance of doubt, in no event shall the reasonable best efforts obligation set forth in this Section 6.15 be construed so as to require Buyer or any of its Affiliates to (i) agree to, or accept, economic terms that are materially less favorable to Buyer, as determined in the reasonable judgment of Buyer after consultation with Seller, than the economic terms contained in the Commitment Letter and the Fee Letter (assuming the application of the “market flex” provisions) or (ii) seek any equity investment or any offering, placement, sale or other issuance of any equity securities (it being understood and agreed that any Alternative Financing ~~contemplated by~~ shall be permitted to be in the form of any ~~new debt commitment letter~~such equity financing). Buyer shall deliver to Seller true and complete copies of all written agreements, arrangements or contracts (including any side letters or (subject to customary redactions) fee letters) pursuant to which any such alternative source shall have committed to provide any Alternative Financing. (cd) ~~Prior to~~ From and after the date of this Agreement, and through the earliest of the Closing, the date on which this Agreement is terminated in accordance with Article IX and the completion of the Committed Financing, Seller ~~and ▇▇▇▇▇▇~~ shall, ~~at Purchaser’s cost~~ and ~~expense~~Seller shall cause each of its Subsidiaries and each of its and their representatives to, use its respective reasonable best efforts toto provide all cooperation that is necessary, customary or advisable and ~~to cause its Representatives to, provide to Purchaser such cooperation as is~~ reasonably requested by ~~Purchaser~~ Buyer to assist Buyer in the arrangement of the Committed Financing and any public or private offering, sale, placement or other issuance of debt and/or equity securities undertaken in replacement of all or a portion of the Committed Financing (the “Securities Financing” and, together with the Committed Financing, the “Financing”) for the purposes of financing the Purchase Price and any other amounts required to be paid in connection with the consummation of the transactions contemplated hereby and all related fees and expenses of Buyer (it being acknowledged and agreed by Buyer that the receipt of such Financing is not a condition to the Closing), including (~~provided that such requested cooperation does not unreasonably interfere~~ A) participating in a reasonable number of meetings, road shows, rating agency sessions and drafting sessions, and participating in reasonable and customary due diligence, (B) furnishing Buyer and the Committed Financing Sources with the ~~ongoing operations of Seller~~Required Information, ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ (iC) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser Buyer and the Committed Financing Sources in the preparation of (A1) ~~a customary~~ offering ~~document, private placement memorandum and/or bank information memorandum and similar marketing~~ documents for the Financing ~~or the Alternative Financing, as applicable,~~ and (B2) materials for rating agency presentations, bank confidential information memoranda, pro forma financial statements and similar documents in connection with the Financing, (~~iii~~D) reasonably cooperating with the marketing efforts for any portion of the Financing, (E) using its reasonable efforts to cause its independent accountants to provide assistance and cooperation in the Financing, including (1) participating in a reasonable number of drafting sessions and accounting due diligence sessions, (2) providing any necessary customary consents to use or file with the SEC their audit reports relating to the Transferred Business and (3) providing any necessary customary “comfort letters,” (F) causing the Transferred Companies to execute and deliver customary definitive financing documents to the extent reasonably requested by Buyer and otherwise facilitating the pledging of collateral reasonably necessary to secure the Financing; provided that the effectiveness of any definitive documentation executed by the Transferred Companies or the pledging of collateral by the Transferred Companies shall be subject to the occurrence of the Closing and (G) furnishing ~~Purchaser~~ Buyer and ~~the~~ any Committed Financing Sources promptly, and in any event at least five (5) Business Days prior to the ~~Required Information;~~ Closing Date, with all documentation and ~~(iv) facilitating Purchaser’s preparation of documentation~~ other information required by any Governmental Entity with respect to the ~~pledging~~ Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of ~~collateral~~2001, ~~if applicable~~as amended. ~~In addition, Seller will use its reasonable best efforts~~ Nothing herein shall require such cooperation to ~~provide to Purchaser and~~ the ~~Financing Sources~~ extent it would (A) unreasonably disrupt the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light conduct of the ~~circumstances under which such statements are made. (d) Notwithstanding the foregoing~~business or operations of Seller or its Subsidiaries, (iB) ~~none of ▇▇▇▇▇▇,~~ require Seller or any of ~~their respective Affiliates or other Representatives shall be required~~ its Subsidiaries to pay any commitment or other similar ~~fee, provide any security, execute any document, make any representations, provide any indemnification~~ fee or incur any other cost or expense that is not reimbursed by Buyer or ~~Liability~~ otherwise incur any liability or give any indemnities, in connection with the ~~Financing or the cooperation contemplated by this Section 6.13(d)~~Financing; provided, ~~(ii) none of ▇▇▇▇▇▇~~however, that Seller ~~or any of their respective Affiliates or other Representatives~~ shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates responsible for ~~all out-of-pocket~~ such fees, costs and expenses incurred by Seller in connection with preparing and delivering any of ~~them~~ the Financial Statements provided for in Sections 6.18(a) or 6.18(b), or (C) require Seller or any of its Subsidiaries to take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the certificate of incorporation or by-laws or other comparable organizational documents of Seller or any of its Subsidiaries, any applicable Laws or any material Contract. In addition, nothing herein shall require Seller or any of its Subsidiaries or any of its representatives to deliver legal opinions. In furtherance of and without limitation to the second immediately preceding sentence, nothing herein shall require Seller or any of its Subsidiaries to, enter into any agreement (or require their respective boards of directors or equivalent governing bodies to approve any such agreement) in connection with the Financing. Except for the fees, costs and expenses incurred by Seller in connection with preparing and delivering any of the Financial Statements provided for in Sections 6.18(a) or 6.18(b), Buyer shall promptly, upon request by Seller, reimburse Seller for all reasonable and documented out- of-pocket third party costs and expenses (including reasonable attorneys’ ~~fees and other fees and expenses as incurred~~fees) incurred by Seller or any of its Subsidiaries or their respective representatives in connection with the ~~cooperation contemplated by this Section 6.13(d)~~ Financing and shall indemnify and hold harmless ~~▇▇▇▇▇▇~~Seller, ~~Seller~~ its Subsidiaries and their respective ~~Affiliates~~ representatives from and against any and all ~~Liabilities~~ losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution arrangement of the Financing and any information used in connection therewith (other than arising from fraud, intentional misrepresentation, misstatements or ~~execute or deliver any certificate, document, instrument or agreement that is effective prior to~~ omissions on the ~~Closing or agree to any change or modification~~ part of ~~any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser~~ Seller or its ~~Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04~~Affiliates). (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Securities Purchase Agreement (Frontier Communications Corp)

Financing. (a) ~~Purchaser and Purchaser Parent each~~ The Buyer shall use ~~its~~ commercially reasonable ~~best~~ efforts to ~~take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to~~ obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and subject only to the conditions described in the ~~Commitment Letter~~ Financing Commitments (including ~~the~~ any flex provisions ~~related~~ applicable thereto~~), subject to any amendments or modifications thereto permitted by Section 6.13(b~~), including using ~~its~~ commercially reasonable ~~best~~ efforts to (i) ~~maintain~~ negotiate definitive agreements (which, with respect to the bridge facility documentation, shall not be required until determined by the Buyer in ~~effect~~ good faith to be reasonably necessary in connection with the funding of the Debt Financing) on substantially the terms and subject only to the conditions contained in the Debt Commitment Letter and Redacted Fee Letter (or on other terms that, with respect to conditionality, are not less favorable to Buyer than the terms and conditions (including market “flex” provisions) set forth in the Debt Commitment Letter and Redacted Fee Letter), (ii) ~~negotiate~~ satisfy or cause the satisfaction of all conditions applicable to the Buyer and ~~enter into~~ its Affiliates in the Financing Commitments and the definitive agreements ~~with respect~~ for the Financing or, if necessary or deemed advisable by the Buyer, seek the waiver of conditions applicable to the Buyer and its Affiliates contained in such Financing Commitments or such definitive agreements for the Financing, (iii) maintain in full force and effect the Financing Commitments in accordance with the terms thereof, (iv) in the event that all conditions in the Financing Commitments have been satisfied or waived, consummate the Financing (including by instructing the Debt Financing Sources and the other Persons providing the Financing to provide such Financing) on the date on which the Closing is required to occur pursuant to Section 2.2, and (v) enforce its rights under the Financing Commitments (including by initiating litigation in respect thereof) in the event of any breach or purported breach thereof. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.14 shall require, and in no event shall the commercially reasonable efforts of the Buyer be deemed or construed to require, the Buyer to (A) seek the Equity Financing from any source other than the counterparties to, or in any amount in excess of that contemplated by, the Equity Financing Commitment, or (B) pay any material fees in excess of those contemplated by the Equity Financing Commitment or the Debt Commitment Letter and Redacted Fee Letter (including any market “flex” provisions contained therein). (b) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including ~~the flex~~ any applicable market “flex” provisions) ~~contained~~ contemplated in the Debt Commitment Letter and Redacted Fee Letter, the Buyer shall use its commercially reasonable efforts, as promptly as practicable, to obtain alternative financing in an amount sufficient to fund the Required Amount with terms and conditions (including market “flex” provisions) not less favorable to the Buyer or its Affiliates than the terms and conditions set forth in the Debt Commitment Letter and Redacted Fee Letter. The Buyer shall deliver to the Seller true and complete copies of the alternative debt commitment letters (including redacted fee letters related thereto) pursuant to which any such alternative source shall have committed to provide any portion of the Debt Financing. (c) The Buyer shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Debt Financing; provided, however, that any such amendment, replacement, supplement, modification or waiver shall not, without the prior written consent of the Seller (i) reduce the aggregate amount of the Debt Financing such that the aggregate amount of the Financing would be below the amount required to pay the Required Amount, (ii) modify or expand upon any of the conditions precedent to the Debt Financing from those set forth in the Debt Commitment Letter, ~~subject~~ or add any new conditions precedent to ~~any amendments~~ the Debt Financing from those set forth in the Debt Commitment Letter, in each case in a manner that would reasonably be expected to materially delay or ~~modifications thereto permitted by Section 6.13(b~~prevent the funding of the Financing (or satisfaction of the conditions to the Financing), (iii) ~~satisfy~~ be reasonably expected to prevent, impede or delay the availability of the Debt Financing, or (iv) be otherwise materially adverse to the interests of the Seller; provided, that the Buyer may modify, supplement or amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (or titles with respect to such entities) who had not executed such Debt Commitment Letter as of the date of this Agreement. The Buyer shall promptly deliver to the Seller a true and correct copy of any such amendment, replacement, supplement, modification, or waiver of or under the Debt Financing. (d) To the extent the Buyer obtains alternative financing pursuant to Section 6.14(b) above, or amends, replaces, supplements, modifies or waives any of the Debt Financing pursuant to Section 6.14(c), references to the “Financing” and “Financing Commitments” as applicable (and other like terms in this Agreement, including, as applicable, “Debt Financing,” “Debt Commitment Letter” and “Redacted Fee Letter”) shall be deemed to refer to such alternative financing, or the Debt Financing as so amended, replaced, supplemented, modified or waived. (e) Upon request by the Seller, the Buyer shall keep the Seller reasonably informed on a timely basis ~~all~~ (and in any event within two (2) Business Days after the date the Seller delivers to the Buyer a request) of the status of the Buyer’s efforts to obtain the Debt Financing and to satisfy the conditions ~~applicable to Purchaser or its Affiliates contained in the Commitment Letter~~thereof, including updating the ~~payment~~ Seller, in a reasonable level of detail, with respect to status, proposed closing date and material terms of the definitive documentation related to the Debt Financing, providing copies of the executed material definitive documents related to the Debt Financing and giving the Seller prompt notice of any ~~commitment, engagement~~ material change (adverse or ~~placement fees required as a condition~~ otherwise) with respect to the Debt Financing ~~and due and payable by Purchaser or its Affiliates~~of which the Buyer becomes aware. Without limiting the foregoing, ~~(iv) upon~~ the ~~satisfaction or waiver of such conditions, consummate~~ Buyer shall notify the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall Seller promptly (and in any event within two (2) Business Days) ~~notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts~~ if at any time prior to ~~arrange as promptly as practicable~~ the Closing Date: (i) the Buyer obtains knowledge that any Financing Commitment expires or is terminated for any reason (or if any Person attempts or purports to terminate any Financing Commitment, whether or not such ~~portion from alternative sources on terms and conditions not materially less favorable in~~ attempted or purported termination is valid), (ii) the ~~aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any~~ Buyer obtains knowledge of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default ~~by Purchaser~~ (or ~~its Affiliates~~ any event or circumstance that, with or without due notice, lapse of ~~the Commitment Letter~~time or both, ~~Alternative Financing or definitive financing agreements related thereto, (2)~~ would reasonably be expected to give rise to any ~~known~~ breach or ~~default~~ default) by any party ~~(other than Purchaser or its Affiliates) of the Commitment Letter, Alternative~~ to any Financing ~~or definitive financing agreements related thereto~~Commitment, (3iii) the Buyer receives any ~~purported~~ written communication from any Person with respect to any (A) actual, potential or threatened breach, default, termination or repudiation by any party of to the ~~Commitment Letter, Alternative~~ Financing ~~or definitive financing agreements related thereto~~ Commitments or (4B) ~~the receipt of notice of any~~ material dispute or disagreement between or among ~~the~~ any parties to the ~~Commitment Letter~~Financing Commitments, ~~Alternative~~ (iv) any Financing source (including any Debt Financing Source) refuses to provide or ~~definitive~~ expresses to the Buyer in writing an intent to refuse to provide all or any portion of the Financing necessary to fund the Required Amount on the terms contemplated by the Financing Commitments, or (v) the Buyer, for any reason, no longer believes in good faith that it will be able to obtain all or any portion of the Financing necessary to fund the Required Amount on the terms contemplated by the Financing Commitments. (f) The Seller shall use its commercially reasonable efforts to provide, and shall cause the Company and its Subsidiaries to use their commercially reasonable efforts to provide, to the Buyer all cooperation reasonably requested by the Buyer in connection with obtaining the Financing (including the debt securities) to the extent customary in connection with the arrangement of debt or equity financing ~~agreements related thereto~~similar to the Financing, including: (i) as promptly as reasonably practicable, furnishing the Buyer with the Required Information; (ii) as promptly as reasonably practicable, informing the Buyer if the Seller, the Company or any of their Subsidiaries shall have actual knowledge of any facts that would be reasonably likely to require the restatement of any financial statements comprising a portion of or that includes the Required Information in order for such financial statements to comply with GAAP; (iii) assisting in preparation for and participating in marketing efforts for the Debt Financing (including a reasonable number of meetings, presentations, calls, roadshows, due diligence sessions, drafting sessions and sessions with rating agencies), and assisting the Buyer in obtaining ratings in connection with the Debt Financing; (iv) assisting the Buyer and the Debt Financing Sources with the preparation of (A) materials for rating agency presentations and (B) ~~upon request~~bank information memoranda, ~~otherwise keep ▇▇▇▇▇▇~~ lender presentations, investor presentations, offering documents, rating agency presentations and ~~Seller~~ similar documents for use in connection with the Debt Financing, including reviewing and commenting on the Buyer’s draft of a business description to be included in marketing materials; (v) using commercially reasonable efforts to cause its independent auditors to provide, consistent with customary practice, (A) reasonable assistance to the Buyer in connection with the Buyer’s preparation of pro forma financial statements and information, (B) reasonable assistance and cooperation to the Buyer, (C) consents customary for financings similar to the Financing (including consents of auditors for use of their reports in any materials relating to the Debt Financing) and (D) customary comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to the Company and its Subsidiaries as reasonably ~~informed~~ requested by Buyer or as necessary or customary for financings similar to the Debt Financing (including any offering or private placement of debt securities pursuant to Rule 144A under the Securities Act); (vi) assisting the Buyer in connection with the preparation of pro forma financial information and pro forma financial statements of the ~~status of Purchaser’s~~ Company and its ~~Affiliates’ efforts~~ Subsidiaries of the type required by paragraph 3 of Exhibit C to ~~arrange~~ the Debt Commitment Letter, to be included in offering documents for the Debt Financing, or necessary or reasonably required by the Buyer’s Financing sources (including the Debt Financing Sources); provided that neither the Seller, the Company nor any of their Subsidiaries shall be required to actually prepare any such pro forma financial information or ~~Alternative~~ provide any information or assistance relating to (A) the proposed debt and equity capitalization that is required for such pro forma financial information or assumed interest rates, fees and expenses relating to such debt and equity capitalization or (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; (vii) executing and delivering as of (but not prior to) the Closing any pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by the Buyer (including a certificate of the chief financial officer (or other executive officer) of the Company with respect to solvency matters in the form set forth as an exhibit to the Debt Commitment Letter) and otherwise reasonably facilitate the pledging of collateral (including the delivery of all stock or other certificates intended to constitute collateral as contemplated by the Debt Commitment Letter) (it being understood that such documents (A) will not take effect prior to the Closing and (B) shall not be required to be executed by any officer of the Company or any of its Subsidiaries unless such officer will be a continuing officer of the Company or one of its Subsidiaries after giving effect to the Closing); (viii) providing customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders, subject to customary confidentiality provisions, and containing a customary representation to the Debt Financing Sources contemplated by the Debt Commitment Letter, including that the public side versions of such documents do not include material non-public information about the Seller, the Company or the Subsidiaries or their securities and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing; provided, that the Company is given a reasonable opportunity prior to execution to review and provide comments on such authorization letters and such information distributed to prospective lenders in connection therewith; (ix) prior to or at, and conditioned upon, the occurrence of the Closing, taking all actions required to obtain the Existing Credit Facility Release; and (x) providing all documentation and other information about the Seller, the Company and their Subsidiaries as is reasonably required under applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act, in each case to the extent requested in writing reasonably in advance of the Closing. (bg) Notwithstanding anything to the contrary in this Agreement~~, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇,~~ : (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser nothing shall require such cooperation as ~~is reasonably requested by Purchaser~~ described in ~~connection with~~ this Section 6.14 (including Section 6.14(l)) to the ~~Financing (provided that such requested cooperation does not~~ extent it would, in the Seller’s reasonable judgment, unreasonably interfere with the ~~ongoing~~ business or operations of ~~Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include~~ the ~~following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing~~ Seller or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicableits Subsidiaries, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ~~▇▇▇▇▇▇,~~ the Seller or nor any of ~~their respective Affiliates or other Representatives~~ its Subsidiaries shall be required ~~to provide any solvency opinion or legal opinion or other opinion of counsel~~to, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to ~~pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver~~ commit to, (A) take any ~~certificate, document, instrument or agreement~~ action that is ~~effective prior to~~ not contingent upon the Closing or ~~agree to~~ enter into or execute any ~~change~~ agreement or ~~modification of any existing certificate, document, instrument or agreement~~ document that is effective prior to the Closing~~. Any~~ , in each case other than customary representation letters and authorization letters (including with respect to the presence or absence of material non-public information ~~provided~~ and the accuracy of the information contained in the disclosure and marketing materials related to ~~Purchaser~~ the Debt Financing) contemplated by the Debt Commitment Letter, (B) require any of its directors to approve or ~~its Affiliates pursuant~~ adopt any Financing or agreements related thereto prior to ~~this Section 6.13(d)~~ the Closing Date (and no such directors that shall not be continuing directors shall be ~~subject~~ required to ~~the Confidentiality Agreement and Section 6.04.~~ take such action), (eC) ~~In no event shall the receipt~~ take any action that would result in any officer, director or ~~availability~~ other Representative of the ~~Financing, Alternative Financing or any other funds or financing by Purchaser~~ Seller or any of its ~~Affiliates be a condition~~ Subsidiaries incurring any personal liability (as opposed to liability in his or her capacity as an officer of such Person) with respect to any matters relating to the Financing or (D) deliver or cause the delivery of ~~Purchaser’s~~ any legal opinions necessary for the Financing. All non-public or ~~Purchaser Parent’s obligations~~ other confidential information provided by the Seller or any of its Subsidiaries or Representatives pursuant to this section shall be kept confidential in accordance with the Confidentiality Agreement. The Seller shall be permitted a reasonable period to comment on any confidential information memorandum, offering memorandum, prospectus or other marketing document circulated to potential financing sources. None of the Seller or any of its Subsidiaries shall be required to bear any cost or expense, pay any commitment or other similar fee or make any other payment (in each case other than for reasonable out-of-pocket costs or expenses that are reimbursed by the Buyer and costs or expenses related to the Existing Credit Facility Release) or incur any other Liability (other than customary representation letters and authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing), it being understood that any Liability with respect thereto is indemnified under ~~this Agreement.~~clause (h) below) or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing matters described herein. It

Appears in 1 contract

Sources: Stock Purchase Agreement (Jack in the Box Inc /New/)

Financing. (a) ~~Purchaser~~ Each of the Equity Investor, Parent and ~~Purchaser Parent each~~ Acquisition Sub shall ~~use~~ take or cause to be taken, and shall cause their respective Affiliates and its ~~reasonable best efforts~~ and their respective Representatives to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and to consummate the Financing (at or ~~any Alternative Financing)~~ prior to the Closing on the terms and subject to the conditions ~~described~~ set forth in the ~~Commitment Letter~~ Financing Commitments (including ~~the flex provisions related thereto), subject to~~ any ~~amendments or modifications thereto permitted by Section 6.13(b~~“flex” provisions), including ~~using its reasonable best efforts to~~ executing and delivering all such documents and instruments as may be reasonably required thereunder and: (i) ~~maintain~~ complying with and maintaining in full force and effect the ~~Commitment Letter~~Financing and the Financing Commitments (and, ~~(ii~~once entered into, the Financing Agreements) ~~negotiate~~ in accordance with the terms and ~~enter~~ conditions thereof and negotiating and entering into definitive financing agreements with respect to the Debt Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Debt Commitment ~~Letter~~ Letters (including any “flex” provisions) and ~~that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b~~containing no (I) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to ~~the Financing, (B) modifies any existing conditions to the Financing in a manner that affects~~ the consummation of all or any portion of the Debt Financing ~~to below a level that would impair Purchaser’s ability to consummate~~ other than the ~~Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects~~ conditions set forth in ~~any material respect the ability of Purchaser to enforce its rights against other parties~~ Exhibit E to the Bank Debt Commitment Letter or Exhibit B to the ~~definitive agreements~~ Margin Loan Commitment Letter, as the case may be, in ~~respect thereof~~each case, as in effect on the date hereof, or (DII) provisions that could ~~otherwise~~ reasonably be expected to prevent, ~~impede~~ impede, delay or ~~delay in~~ adversely affect the availability of any ~~material respect~~ of the Debt Financing or the consummation of the ~~Closing or~~ Merger and the ~~Transactions~~other transactions contemplated by this Agreement (such definitive agreements, or the “Financing Agreements”) so that the Financing Agreements are in full force and effect no later than the Closing; (ii) ~~undertake~~ satisfying, or obtaining the waiver of, as promptly as practicable and on a timely basis (and in any ~~merger~~event, ~~acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected~~ no later than the Closing) all conditions to ~~materially impair, delay or prevent consummation of~~ the Debt Financing contemplated by the Debt Commitment ~~Letter~~ Letters and Financing Agreements that are within its or their control, including, without limitation: (A) on or prior to the Closing Date, transferring Tesla Shares to the Margin Loan Borrower and causing the Margin Loan Borrower to credit to collateral accounts pledged to the applicable Debt Financing Sources in respect of the Margin Loan Financing and held through the facilities of DTC, in each case, sufficient Tesla Shares, which shall be free from all transfer restrictions and restrictive conditions (other than permitted restrictions contemplated under the Financing Documents in respect of the Margin Loan Financing), to cause the LTV Ratio (as defined in the Margin Loan Commitment Letter) not to exceed 20% as of the Closing Date; (B) ensuring the absence of (1) any default or event of default (or any ~~Alternative~~ equivalent term) under the Financing ~~contemplated by~~ Agreements in respect of the Margin Loan Financing, or (2) any ~~new debt commitment letter.~~Potential Adjustment Event or Mandatory Prepayment Event (in each case, under and as defined in the Margin Loan Commitment Letter); (cC) ~~Prior to~~ (x) maintaining the ~~Closing, Seller~~ Margin Loan Borrower as a wholly owned subsidiary of Parent and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, ~~Seller~~ and (y) causing the organizational documents of the Margin Loan Borrower not to contain, and causing the Margin Loan Borrower not to enter into any Contract, that would (1) impede or prevent the Margin Loan Borrower or any of its Affiliates from enforcing or the Margin Loan Borrower’s rights in respect of the Debt Financing Sources under the Margin Loan Commitment Letter or any Financing Agreement in respect thereof or (2) impede or prevent the Margin Loan Borrower or any of its Affiliates from applying the proceeds of the loans to pay any Funding Obligations; and (D) causing ▇▇▇▇ ▇▇▇▇ to (1) fully and unconditionally guarantee all obligations of the Margin Loan Borrower under the Margin Loan Financing to the extent required to consummate the Margin Loan Financing and (2) at all times through and including the Closing Date to own (beneficially and of record), directly or indirectly, all of the outstanding equity interests of, and Control, the Margin Loan Borrower; (iii) accepting (and complying with) to the fullest extent all “flex” provisions contemplated by the Debt Commitment Letters; (iv) causing the Financing Sources to fund the Financing no later than the Closing (including by enforcing its rights under the Debt Commitment Letters and/or Financing Agreements, as applicable). (b) None of the Equity Investor, Parent, Acquisition Sub or the Margin Loan Borrower or any of their respective Affiliates shall agree to or permit any amendment, supplement, modification or replacement of, or grant any waiver of, any condition, remedy or other ~~Representatives shall~~ provision under any Financing Commitment or Financing Agreement, or permit any Financing Agreement to contain any provision, without the prior written consent of the Company, if such amendment, supplement, modification, replacement, waiver or provision would or would reasonably be ~~required~~ expected to ~~pay any commitment~~ (i) reduce (or ~~other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with~~ would reasonably be expected to have the effect of reducing) the aggregate amount of the Financing (or the ~~cooperation~~ cash proceeds available therefrom) from that contemplated by ~~this Section 6.13(d)~~the Financing Commitments delivered as of the date hereof, (ii) ~~none of ▇▇▇▇▇▇, Seller~~ impose new or ~~any of their respective Affiliates~~ additional conditions or ~~other Representatives shall be required~~ contingencies to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or ~~the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇~~otherwise expand, ~~Seller~~ amend or ~~their respective Affiliates, or any Persons who are directors of~~ modify any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior existing conditions to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt ~~or availability~~ of the Financing, ~~Alternative Financing~~ or otherwise add, expand, amend or modify any other ~~funds~~ provision of, or ~~financing by Purchaser~~ remedies under, the Financing Commitments as in effect on the date hereof, in a manner that would reasonably be expected to delay, impede or ~~any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.~~prevent the consummation

Appears in 1 contract

Sources: Merger Agreement (Twitter, Inc.)

Financing. (a) ~~Purchaser~~ The Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or any replacements of, the Debt Financing Commitment if such amendment, modification, waiver or replacement (i) reduces the aggregate amount of the Debt Financing (including by changing the amount of any fees to be paid or original issue discount of the Debt Financing) to an amount that would be less than an amount that would be required to consummate the Transactions on the Closing Date and ~~Purchaser Parent each~~ make the other payments required to be made by Buyer or any of its Affiliates hereunder on the Closing Date or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the terms of the Debt Financing or conditions to the receipt of the Debt Financing in a manner that would reasonably be expected to (A) delay or prevent the Closing, or (B) make the funding of any portion of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) materially less likely to occur or (C) adversely impact the ability of the Buyer to enforce its rights in any material respect, as applicable, against the other parties to the Debt Financing Commitment or the definitive agreements with respect thereto. (b) The Buyer 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~~ customary or advisable to arrange and obtain ~~and to consummate~~ the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in or contemplated by the ~~Commitment Letter~~ Debt (~~including~~ c) Without limiting the ~~flex provisions related thereto~~generality of the immediately preceding clause (b), ~~subject to~~ the Buyer shall give the Seller prompt (and, in any ~~amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to~~ event within one Business Day) written notice: (i) ~~maintain in effect~~ of any amendment, modification, waiver or replacement to the Debt Financing Commitment ~~Letter~~(together with a copy of such amendment, modification, waiver or replacement); (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any ~~commitment, engagement~~ material breach or ~~placement fees required as a condition to the Financing and due and payable by Purchaser~~ material default (or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance ~~that makes procurement~~ that, with or without notice, lapse of time or both, could give rise to any material breach or material default) by any party to the Debt Financing Commitment or definitive document related to the Debt Financing of which the Buyer becomes aware; (iii) of the receipt of any notice or other communication from any party to the Debt Financing Commitment with respect to any actual expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to the Debt Financing Commitment or any definitive document related to the Debt Financing or any provisions of the Debt Financing Commitment or any definitive document related to the Debt Financing; or (iv) if the Buyer does not expect to be able to obtain all or any portion of the Debt Financing ~~reasonably unlikely to occur~~ on the terms, in the manner or from the sources contemplated by the Debt Financing Commitment or the definitive documents related to the Debt Financing. (d) If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the ~~Commitment Letter~~Debt Financing Commitment, ~~Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and~~ the Buyer shall use its reasonable best efforts to arrange ~~as promptly as practicable any such portion~~ and obtain alternative financing from alternative sources ~~on terms~~ in an amount sufficient to consummate the Transactions as soon as practicable following the occurrence of such event, but no later than the Business Day immediately prior to the Closing Date. The Buyer shall promptly deliver to the Seller true and ~~conditions not materially less favorable in~~ complete copies of all agreements pursuant to which any such alternative financing source shall have committed to provide the ~~aggregate to Purchaser and~~ Buyer or its Affiliates ~~than~~ with any portion of the ~~terms~~ Debt Financing, and ~~conditions set forth~~ all of the provisions of this ‎Section 5.18 shall apply to such alternate financing, mutatis mutandis. (e) From and after the date hereof until the Closing, the Seller shall provide, and shall use commercially reasonable efforts to cause its Affiliates, Representatives and advisors, including tax advisors, to provide customary cooperation and assistance in connection with the ~~Commitment Letter~~ arrangement of the Debt Financing, as may be reasonably requested by the Buyer, including: (i) causing the Company Entities to execute and deliver customary guarantee, pledge and security documents or other definitive financing documents or other certificates, legal opinions and documents as may be reasonably requested by the Buyer, provided, however, that ~~would not have~~ no obligation of any of the ~~effects prohibited pursuant to amendment~~ Company Entities, under any such document or agreement, as applicable, is effective until the Closing; (ii) furnishing the Buyer and the Financing Source with the most recent combined financial statements, financial data and other information of the Company Entities available and reasonably requested by ~~Section 6.13(b~~the Buyer or the Financing Source in connection with the Debt Financing, including the combined unaudited balance sheet of the Company Entities as of the last day of each fiscal quarter (from and after the fiscal quarter ending March 31, 2019) within 60 days following the end of each such fiscal quarter and the related unaudited statements of income as prepared by management for each such fiscal quarter then ended, other than the Last Quarter Financials; (~~such financing~~iii) assisting any Financing Source in the preparation of syndication documents and materials (including assistance in creating usual and customary “public versions” of the foregoing), including confidential information memoranda, lender presentations, rating agency presentations, business and financial projections and similar documents and materials, in connection with any Debt Financing (all of the foregoing, collectively, the “~~Alternative Financing~~Syndication Documents”)~~. Purchaser~~ , including providing the business description to be contained therein, and providing customary authorization and representation letters with respect thereto, and materials for any Syndication Documents, including business projections and financial statements (including assisting the Buyer in preparing pro forma financial statements); (iv) promptly correct any information provided by it under this ‎Section 5.18 if and to the extent such information shall have become false or misleading in any material respect; (v) taking such corporate actions (subject to the occurrence of Closing) reasonably required to permit the consummation of the Debt Financing; (vi) cooperating reasonably with the Financing Source’s due diligence of the Company Entities and the Seller Business, (vii) requesting and co-operating with the Buyer or the Financing Source in obtaining documents relating to the repayment of any Indebtedness of the Company Entities and the release, discharge and termination of any related Liens and guarantees thereunder, including payoff letters and, to the extent required, evidence that notice of such repayment has been timely delivered to the holders of such Indebtedness; and (viii) taking other actions reasonably requested by the Buyer and/or the Financing Source in connection with the Debt Financing; provided, however, that, notwithstanding anything in this Agreement to the contrary, nothing contained in this ‎Section 5.18(e) shall require, and in no event shall reasonable best efforts of the Seller be deemed or construed to require Seller or any Company Entity to (A) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1)~~ prior to the Closing, allow any ~~breach~~ arranger or ~~default by Purchaser~~ syndicate lender access to the personnel or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice facilities of any ~~material dispute~~ Company Entity that is greater in scope or ~~disagreement between or among~~ frequency than the ~~parties~~ access afforded to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in Buyer under this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) ~~modifies~~ make any ~~existing conditions to~~ representations in connection with the Debt Financing or otherwise incur any actual or potential liability or cost in ~~a manner that affects~~ connection with the ~~consummation of all or any portion~~ Debt Financing other in respect of the ~~Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing~~customary authorization or representation letters, (C) ~~adversely affects~~ be in privity with any ~~material respect the ability of Purchaser to enforce its rights against~~ arranger, lender or other ~~parties~~ party to the ~~Commitment Letter or the definitive agreements in respect thereof~~Debt Financing, or (D) ~~could otherwise reasonably be expected to prevent~~make any disclosure not required under this Agreement, ~~impede~~ (E) waive or ~~delay in~~ modify any ~~material respect the consummation~~ terms of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter this Agreement or any ~~Alternative Financing contemplated by~~ other Contract to which any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any ~~of their respective Affiliates~~ Company Entity is a party, (F) take any action that will conflict with or ~~other Representatives shall be required to~~ violate any applicable Law, (G) pay any commitment or other ~~similar~~ fee, ~~provide~~ incur any ~~security~~liability or obligation under any indenture, ~~execute~~ loan agreement or any ~~document, make~~ related document or any ~~representations, provide any indemnification~~ other agreement or document related to the Debt Financing or incur any other ~~expense~~ liability or ~~Liability~~ obligation in connection with the Debt Financing or (H) approve any Debt Financing prior to the ~~cooperation contemplated by this Section 6.13(d)~~Closing (f) The Buyer shall, (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, promptly upon request by ~~▇▇▇▇▇▇ or~~ the Seller, reimburse ~~▇▇▇▇▇▇,~~ the Seller for any and ~~their respective Affiliates for~~ all reasonable and documented out-of-pocket ~~fees,~~ costs ~~and expenses~~ incurred by ~~any of them (including reasonable attorneys’ fees and other fees and expenses as incurred)~~ the Seller in connection with ~~the~~ cooperation ~~contemplated by this Section 6.13(d~~provided for in ‎Section 5.18(e) and ~~shall indemnify~~ execute, deliver and ~~hold harmless ▇▇▇▇▇▇,~~ provide such documentation as the Seller ~~and their respective Affiliates from and against any and all Liabilities incurred by any of them~~ may reasonably request in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04therewith. (eg) ~~In no event~~ The Buyer will notify the Seller in writing in reasonable detail, within 10 Business Days after the date of this Agreement, of all information required under the definition of Required Financial Information. The requirements of such definition shall be deemed satisfied if the ~~receipt~~ Buyer does not notify the Seller in writing in reasonable detail of any deficiencies in such information or ~~availability~~ any additional or supplemental information reasonably requested by Buyer (such notification, a “Supplemental Request”) within five Business Days of the ~~Financing, Alternative Financing~~ initial delivery of such information by the Seller or any ~~other funds or financing by Purchaser or~~ additional delivery after any ~~of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement~~such Supplemental Request.

Appears in 1 contract

Sources: Purchase and Sale Agreement (PetIQ, Inc.)

Financing. (a) ~~Purchaser~~ Each of Merger Sub and ~~Purchaser~~ Parent ~~each~~ shall use ~~its~~ their respective commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ~~obtain~~ arrange, consummate and obtain, and to consummate the Financing (or any Alternative Financing) on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to, debt or equity financing or some combination of debt and equity financing in an aggregate amount (after taking into consideration the funds otherwise expected to be available to Parent) that is required to consummate the ~~Financing on~~ Offer, the ~~terms~~ Merger and ~~conditions (including~~ the ~~flex provisions) contained in the Commitment Letter, subject~~ other transactions contemplated by this Agreement and to pay any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees ~~required as a condition to the Financing~~ and ~~due and~~ expenses payable by ~~Purchaser~~ Parent, Merger Sub or ~~its Affiliates, (iv) upon~~ the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required Company in connection ~~with the Financing, and~~ therewith (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “~~Alternative~~ Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) ~~Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser~~ Parent shall ~~not, without the prior written consent of ▇▇▇▇▇▇,~~ (i) ~~permit any termination~~furnish the Company complete, ~~amendment or modification to, or any waiver~~ correct and executed copies of any ~~provision or remedy under~~financing agreement entered into in accordance with this Section 6.13 (“Financing Agreement”) promptly upon its execution, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) ~~undertake~~ give the Company prompt written notice of any ~~merger~~breach or threatened breach of which either Merger Sub or Parent is or becomes aware by any party of any Financing Agreements entered into or threatened termination thereof, ~~acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could~~ and (iii) otherwise keep the Company reasonably ~~be expected to materially impair, delay or prevent consummation~~ informed in a timely manner of the ~~Financing contemplated by~~ status of its efforts to arrange the ~~Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter~~Financing. (c) Prior to the ~~Closing~~Acceptance Time, ~~Seller~~ Parent and ~~▇▇▇▇▇▇ shall,~~ Merger Sub shall obtain commitments from Persons represented by Affiliates of Parent (serving on Israeli Parent’s Board of Directors) to provide at ~~Purchaser’s cost and expense, use reasonable best efforts to, and~~ least $5 million of equity financing to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing Parent or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents Merger Sub for the ~~Financing~~ Offer on terms at least as favorable to Parent or ~~the Alternative Financing~~Merger Sub, as applicable, as those offered by any other arms-length provider of at least $5 million in equity financing for the Offer, and subject to conditions, including without limitation, Parent’s or Merger Sub’s receipt (Beither directly or through its Affiliates) ~~materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation~~ of ~~documentation with respect to the pledging~~ a minimum of ~~collateral~~$19 million of additional financing plus any amounts, if ~~applicable. In addition~~any, ~~Seller will use its reasonable best efforts~~ necessary to ~~provide to Purchaser and the Financing Sources the Required Information in a manner that~~refinance existing debt of Parent, ~~taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets~~ Israeli Parent or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability Company in connection with ~~the Financing or the cooperation contemplated by this Section 6.13(d)~~such additional financing, (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any acceptableness of ~~them in connection with~~ such additional financing being at the ~~Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none~~ sole discretion of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04Parent. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Perseon Corp)

Appears in 1 contract

Sources: Stock Purchase Agreement (At&t Inc.)

Financing. (a) ~~Purchaser~~ Each of Parent and ~~Purchaser~~ Merger Sub shall use, and shall cause their respective Affiliates to use, reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper or advisable (as reasonably determined by Parent and Merger Sub) to arrange, obtain and consummate the Financing on the terms and conditions (including, to the extent required, the full exercise of any “flex” provisions contained in the Fee Letter) described in the Financing Commitment Letters, and shall not permit any amendment, supplement or modification to be made to, or any waiver of any provision under, the Financing Commitment Letters or the Fee Letter if such amendment, supplement, modification or waiver, (A) with respect to the Financing Commitment Letters or Fee Letter, reduces (or could reasonably be expected to have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount or the Debt Financing is otherwise made available at Closing to fund such fees or original issue discount and (y) after giving effect to such reduction and any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 5.09 shall be true and correct), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing, or imposes new or additional conditions or otherwise expands, amends or modifies any other provision of the Financing Commitment Letters or the Fee Letter, in each case of clauses (A) and (B), in a manner that would (x) reasonably be expected to prevent or make less likely the funding of the Financing in an amount necessary to fund the Required Amounts on the Closing Date 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 Commitment Letters or the definitive agreements with respect thereto (provided that, subject to compliance with the other provisions of this Section 6.17(a), Parent and Merger Sub may amend the Debt Commitment Letter to add additional lenders, arrangers, bookrunners and agents). Parent shall promptly deliver to the Company copies of any amendment, supplement, waiver, consent, modification or replacement in respect of the Debt Commitment Letter (other than an amendment to add additional lenders, arrangers, bookrunners and agents) and the Fee Letter. Parent and Merger Sub shall not agree to the withdrawal, termination, repudiation, reduction or rescission of any commitment in respect of the Debt Financing, and shall not release or consent to the termination of the obligations of the financing sources under the Debt Commitment Letter, in each case, without the prior written consent of the Company, to the extent such withdrawal, termination, repudiation, reduction or rescission is in an amount such that the net proceeds of the Financing would not be in an amount sufficient to fund the Required Amounts at Closing or the Parent would not be able to make the representation set forth in Section 5.08 hereof as of the date of such withdrawal, termination, repudiation, reduction or rescission after giving effect thereto. Parent shall promptly deliver to the Company copies of any such amendment, modification or replacement. For purposes of this Agreement, (i) references to “Financing” shall include the financing contemplated by the Financing Commitment Letters as permitted to be amended, modified, supplemented or replaced by this Section 6.17(a), (ii) references to “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as permitted to be amended, modified, supplemented or replaced by this Section 6.17(a) and (iii) references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified, supplemented or replaced by this Section 6.17(a). (b) Each of Parent and Merger Sub shall, taking into account the Marketing Period, 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 (as reasonably determined by Parent and Merger Sub) to arrange and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms ~~and conditions described in the Commitment Letter~~ (including the ~~flex~~ market “flex” provisions ~~related thereto),~~ contained in the Fee Letter) and subject only to ~~any amendments or modifications thereto permitted by Section 6.13(b)~~the conditions set forth in the Financing Commitment Letters, including using ~~its~~ reasonable best efforts (taking into account the Marketing Period to the extent reasonably applicable) (iA) to maintain in effect the Financing Commitment ~~Letter~~Letters, (iiB) to promptly negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions (~~including~~ including, as necessary, agreeing to any requested changes to the ~~flex~~ commitments thereunder in accordance with any “flex” provisions) contained in the Debt Commitment Letter and the Fee Letter; (C) to promptly prepare the necessary offering circulars, ~~subject~~ private placement memoranda, or other offering documents, rating agency materials and other marketing materials with respect to ~~any amendments or modifications thereto permitted~~ the Debt Financing and to commence the marketing and/or syndication activities contemplated by ~~Section 6.13(b),~~ the Debt Commitment Letter as promptly as practicable following the date of this Agreement; (~~iii~~D) to promptly satisfy on a timely basis all conditions ~~applicable~~ to ~~Purchaser or its Affiliates contained~~ funding in the Debt Commitment ~~Letter, including~~ Letter and such definitive agreements thereto and in the ~~payment of any commitment, engagement or placement fees required as a condition~~ Equity Commitment Letter and to ~~the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions,~~ consummate the Financing on at or prior to the Closing ~~Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing,~~ and (viE) to promptly, diligently and fully enforce its rights under the Financing Commitment Letters including using its reasonable best efforts to enforce their rights under the Debt Financing to the extent necessary to consummate the transactions contemplated by this Agreement and (F) to comply with its obligations under the Financing Commitment Letters and the Fee Letter. ~~If Purchaser~~ Promptly upon written request, Parent shall inform the Company in reasonable detail of the status of its efforts to arrange and consummate the Debt Financing and any material developments in respect thereof. Parent shall provide the Company promptly upon written request with such information regarding the Debt Financing and any syndication efforts as shall be reasonably necessary to allow the Company to monitor the progress of such financing activities. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice of (x) any actual breach or ~~Purchaser~~ default by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of which Parent or Merger Sub becomes ~~aware~~ aware, (y) the receipt of (A) any written notice or (B) other communication in writing, in each case from any Financing source with respect to any actual breach, default, termination or repudiation by any party to any of the Financing Commitment Letters or definitive agreements related to the Financing of any ~~event~~ provisions of the Financing Commitment Letters or ~~circumstance~~ definitive agreements related to the Financing, and (z) if at any time for any reason Parent or Merger Sub believes in good faith that ~~makes procurement of~~ it will not be able to obtain all or any portion of the Financing ~~reasonably unlikely to occur~~ on the terms and conditions, in the manner or from the sources contemplated in by any of the Financing Commitment ~~Letter~~Letters or definitive agreements related to the Financing. As soon as reasonably practicable, ~~Purchaser shall promptly (and~~ but in any event within two Business Days of the date the Company delivers to Parent or Merger Sub a written request, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (2x), (y) ~~Business Days~~or (z) ~~notify ▇▇▇▇▇▇~~ of the immediately preceding sentence or the status of the Debt Financing. Upon the occurrence of any circumstance referred to in clause (x), (y) or (z) of the second preceding sentence or if any portion of the Debt Financing otherwise becomes unavailable, and ~~Seller~~ such portion is required to pay all amounts required to be paid in connection with the Merger and the transactions contemplated by this Agreement (including, without limitation, to fund the Aggregate Merger Consideration, repay or refinance the debt of the Company and its Subsidiaries contemplated by this Agreement or the Debt Commitment Letter, and all other fees, expenses and other amounts contemplated to be paid by Parent, Merger Sub or the Surviving Corporation pursuant to this Agreement and the Financings), Parent and Merger Sub shall use ~~its~~ their reasonable best efforts to arrange ~~as promptly as practicable any such portion~~ and obtain in replacement thereof alternative financing from alternative sources ~~on terms~~ in an amount sufficient to consummate the Merger, the Financing and the transactions contemplated by this Agreement and the Financing Commitment Letters (including, without limitation, payment of the Required Amounts at Closing) with conditions not ~~materially less favorable~~ more onerous to comply with in ~~the aggregate to Purchaser and its Affiliates~~ any material respect than the ~~terms and~~ conditions set forth in the Debt Commitment Letter ~~and that would not have any~~ as of the ~~effects prohibited pursuant to amendment by Section 6.13(b) (~~date hereof as promptly as reasonably practicable following the occurrence of such ~~financing,~~ event. Parent and Merger Sub acknowledge and agree that the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount obtaining of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any ~~Alternative Financing contemplated by any new debt commitment letter~~alternative financing, is not a condition to Closing. (c) Prior to the ~~Closing~~Closing Date, ~~Seller~~ the Company shall use, and ~~▇▇▇▇▇▇ shall~~shall cause each of its Subsidiaries to use, ~~at Purchaser’s cost~~ and ~~expense,~~ shall use reasonable best efforts toto have each of its and its Subsidiaries’ respective directors, officers and advisors to ~~cause its Representatives to~~use, in each case, their respective reasonable best efforts to provide to ~~Purchaser such~~ Parent and Merger Sub, in each case at Parent’s sole expense, all cooperation ~~as is~~ reasonably ~~requested by Purchaser~~ necessary and customary in connection with the arrangement of the Debt Financing (solely for the purposes of this Section 6.17, the term “Debt Financing” shall be deemed to include customary Rule 144A-for-life high-yield non-convertible debt securities offering to be issued or incurred in lieu of all or a portion of any bridge facility contemplated by the Debt Commitment Letter or pursuant to any “market flex” or “securities demand” provisions of the Fee Letter or any other document associated with the Debt Commitment Letter) (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of ~~Seller~~the Company or its Subsidiaries), ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance~~ which reasonable best efforts shall include ~~the following:~~ (i) ~~assisting~~ upon reasonable notice, and at reasonable times and locations to be mutually agreed, causing the management teams of the Company and its Subsidiaries with appropriate seniority and expertise and external auditors to participate in ~~preparation for~~ a reasonable number of meetings, drafting sessions, presentations, road shows, and ~~participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors~~ rating agency and ~~ratings agencies~~due diligence sessions, (ii) assisting ~~Purchaser and the Financing Sources in~~ with the preparation of (A) ~~a customary~~ offering ~~document~~documents, private placement ~~memorandum and/or~~ memoranda, bank information ~~memorandum~~ memoranda, prospectuses and similar ~~marketing~~ documents ~~for~~ reasonably necessary in connection with the Debt Financing ~~or the Alternative Financing, as applicable,~~ and (B) materials for rating agency presentations, provided, however, that any offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents or rating agency presentations shall not contain disclosure reflecting the Parent as the obligor(s) other than as set forth in the customary authorization letters or representation letters as contemplated by clause (iii) ~~furnishing Purchaser and the Financing Sources the Required Information; and~~ below, (iii) executing customary authorization letters or management representation letters, as applicable, (iv) ~~facilitating Purchaser’s~~ furnishing Parent reasonably promptly with the Required Information as and when it becomes available, (v) assisting with the preparation of any pledge and security documents, guarantees, other definitive financing documents, or other related certificates or documents as may be reasonably requested by Parent or Merger Sub (including a certificate of the chief financial officer of the Company with respect to solvency matters in the form set forth as an annex to the Debt Commitment Letter) and otherwise facilitating the pledging of collateral to the extent required at Closing by the Debt Commitment Letter (including cooperation in connection with the pay-off at Closing of existing Indebtedness to the extent expressly contemplated by this Agreement and the release, following such repayment, of related Liens and termination, following such repayment, of security interests (including delivering prepayment or termination notices as required), (vi) assisting Parent or Merger Sub in obtaining from the Company and/or its Subsidiaries’ auditors comfort letters (including as to negative assurances) in connection with the Debt Financing and (vii) to the extent requested at least ten Business Days prior to the Closing Date, providing, at least three Business Days prior to the Closing Date, all documentation with respect to the ~~pledging~~ Company and its Subsidiaries required by applicable “know your customer” and anti-money laundering Applicable Laws, including the USA PATRIOT Act, to the extent requested in writing at least ten Business Days prior to the Closing Date; provided, however, that the Company shall not be required to provide, or cause its Subsidiaries to provide, cooperation under this Section 6.17(c) or (g) below that: (A) unreasonably interferes with the ongoing business of ~~collateral~~the Company or its Subsidiaries; (B) causes any covenant, ~~if applicable. In addition~~representation or warranty in this Agreement to be breached or otherwise causes the breach of this Agreement or any Contract to which the any of the Company or its Subsidiaries is a party, ~~Seller~~ in each case, in a manner that would cause any closing condition set forth in Section 7.02 to fail to be satisfied; (C) requires the Company or its Subsidiaries to incur any liability (including, without limitation, any commitment fees and expense reimbursement) in connection with the Debt Financing (other than the authorization letters and management representation letters referenced above) prior to, or that are not conditioned upon, the Closing; (D) requires the Company or its Subsidiaries or their respective directors, officers, managers or employees (other than execution and delivery into escrow by those officers that will ~~use~~ act in a similar capacity after the Closing) to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing (other than with respect to the authorization letters and management representation letters referenced above and the redemption notice referred to below) or adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained; (E) requires the Company or its Subsidiaries to give any legal opinion or other opinion of counsel; (F) requires the Company or its Subsidiaries to provide any information that is prohibited or restricted by Applicable Law or applicable confidentiality undertaking or that constitutes privileged information or attorney-client work product, to the extent the Company and its Subsidiaries uses reasonable best efforts to provide ~~to Purchaser and the Financing Sources the Required Information~~ such information in a manner ~~that, taken as a whole,~~ that does not ~~contain any untrue statement of a material fact regarding~~ breach such undertaking, obligation or privilege; (G) requires the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller Company or any of ~~their respective Affiliates~~ its Subsidiaries to prepare or deliver any financial statements or other ~~Representatives~~ financial information other than the Required Information; or (H) requires the Company or its Subsidiaries to take any action that is prohibited or restricted by, or will conflict with or violate, its organizational documents or would result in a violation or breach of, or default under, any agreement or Contract to which the Company or any of its Subsidiaries is a party (except to the extent such action is conditioned upon and subject to, the Closing). In no event shall the Company be in breach of this Agreement because of the failure to deliver any historical financials that is not currently readily available to the Company and its Subsidiaries on the date hereof or is not otherwise prepared in the ordinary course of business of the Company and its Subsidiaries at the time requested by Parent. In no event shall the Company or its Subsidiaries be required to pay any commitment or other ~~similar fee, provide any security, execute any document, make any representations, provide any indemnification~~ fee or give an indemnity or incur any ~~other expense~~ liability (including due to any act or ~~Liability in connection with~~ omission by the ~~Financing or the cooperation contemplated by this Section 6.13(d)~~Company, ~~(ii) none of ▇▇▇▇▇▇, Seller~~ its Subsidiaries or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.resp

Appears in 1 contract

Sources: Merger Agreement (Parexel International Corp)

Financing. (a) ~~Purchaser and Purchaser~~ Parent ~~each~~ 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 obtain~~ arrange and to consummate the Financing (as soon as reasonably practicable after the date of this Agreement, but on or ~~any Alternative Financing)~~ prior to the Closing Date, on the terms and conditions described in the Commitment ~~Letter (including~~ Letters and the ~~flex provisions related thereto)~~Fee Letter, ~~subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its~~ which reasonable best efforts to shall include (i) ~~maintain in effect the Commitment Letter, (ii) negotiate and enter~~ entering into definitive agreements with respect to the Financing on or prior to the Closing Date on terms and conditions ~~(including the flex provisions)~~ no less favorable to Parent than those contained in the Commitment ~~Letter~~Letters after giving effect to the “market flex” provisions under the Fee Letter (the “Financing Agreements”), ~~subject to any amendments~~ (ii) satisfying on a timely basis or ~~modifications thereto permitted by Section 6.13(b)~~obtaining the waiver of all conditions in the Commitment Letters and the Financing Agreements, (iii) ~~satisfy on a timely basis all conditions applicable~~ consummating the Financing at or prior to ~~Purchaser or its Affiliates contained in~~ the ~~Commitment Letter~~time upon which Closing is required to occur pursuant to the terms of this Agreement (it being understood that, ~~including the payment of any commitment, engagement or placement fees required as~~ it is not a condition to Closing under this Agreement for Parent to obtain the ~~Financing~~ Financing) and ~~due and payable by Purchaser or its Affiliates,~~ (iv) ~~upon~~ enforcing its rights under the ~~satisfaction~~ Commitment Letters and the Financing Agreements, except, in the case of clauses (i) through (iv) above, to the extent (and solely to the extent) Parent or ~~waiver~~ one or more of ~~such conditions, consummate~~ its Subsidiaries has (x) issued in one or more offerings any debt or equity securities in lieu of the Debt Financing on or prior to the Closing ~~Date~~Date (any such offering, a “Securities Offering” and collectively, the “Securities Offerings”) and/or (y) obtained financing in the form of loans (including under a revolving line of credit), notes or other similar instruments in lieu of the Debt Financing on or prior to the Closing Date (collectively with any Securities Offerings, the “Other Financing Arrangements”) that provides sufficient proceeds, together with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of the Equity Financing, to pay the Required Cash Amount. Other than as set forth in Section 5.14(b) and Section 5.14(c), Parent shall use its reasonable best efforts to maintain in effect each Commitment Letter, except to the extent (and solely to the extent) Parent or one or more of its Subsidiaries has closed one or more Other Financing Arrangements that provides sufficient proceeds, together with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of the Equity Financing, to pay the Required Cash Amount. Parent must, upon the reasonable request by ~~drawing on any interim or bridge financing facilities contemplated thereby~~the Company, (vA) ~~obtain such third-party consents as may be~~ keep the Company informed on a reasonably ~~required~~ current basis and in reasonable detail of the status of its efforts to arrange the Financing and any Other Financing Arrangements and (B) provide the Company with copies of all definitive agreements and other material documents related to the Debt Financing and any Other Financing Arrangement in connection with its satisfaction of obligations pursuant to clause (d) below. Parent shall give the ~~Financing~~Company written notice as promptly as practicable (and in any event, ~~and~~ within two (vi2) ~~comply~~ Business Days) (x) of any material breach or default by any party to any of the Financing Commitments or definitive agreements related to the Financing or any documentation governing any Other Financing Arrangement of which Parent becomes aware, and/or (y) of the receipt of any (1) written notice or (2) other written communication, in each case from any Lender or Equity Investor with ~~its obligations~~ respect to (I) any actual breach or default, or any termination or repudiation, in each case in any material respect, by any party to any of the Commitment Letters or definitive agreements related to the Financing of any provisions of any Financing or definitive agreements related to the Financing or (II) dispute or disagreement between or among the parties to any of the Commitment Letters or definitive agreements related to the Financing or any documentation governing any Other Financing Arrangement with respect to the obligation to fund the Financing or such Other Financing Arrangement or the amount of the Financing to be funded at the Closing that would reasonably be expected to (A) make the funding of the Financing or such Other Financing Arrangement less likely to occur or (B) materially delay or prevent the Closing, or (y) reduce the aggregate amount available under the Commitment ~~Letter. If Purchaser or Purchaser Parent becomes aware~~ Letters (including as a result of the imposition of any ~~event or circumstance that makes procurement~~ “flex” terms in the Fee Letter) below an amount that, when combined with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of any ~~portion~~ Other Financing Arrangements, is sufficient to pay the Required Cash Amount (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). Parent must provide any information reasonably ~~unlikely~~ requested by the Company relating to ~~occur~~ any of the circumstances referred to in the ~~manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly~~ previous sentence as soon as reasonably practical (~~and~~ but in any event within two (2) Business Days) after the date that the Company delivers a written request therefor to Parent. (b) If, prior to the earliest of (x) the Closing, (y) the consummation of Other Financing Arrangements that provide sufficient proceeds, together with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of the Equity Financing, to pay the Required Cash Amount and (z) the amount of available and unrestricted cash on Parent’s balance sheet being sufficient, together with the proceeds of the Equity Financing, to pay the Required Cash Amount (such earliest date, the “Satisfaction Date”), any portion of the Debt Financing becomes unavailable, or Parent becomes aware of any event or circumstance that makes any portion of the Debt Financing unavailable, on the terms and conditions (including any “flex” provisions in the Fee Letter) contemplated in the Debt Commitment Letter, Parent will promptly notify ~~▇▇▇▇▇▇~~ the Company in writing (but in any event within two (2) Business Days after the occurrence or discovery thereof) and ~~Seller and shall~~ Parent will use ~~its~~ reasonable best efforts to ~~arrange~~ obtain, as promptly as ~~practicable any such portion~~ reasonably practicable, financing from the same or alternative sources on terms ~~and conditions~~ not ~~materially~~ less favorable to Parent than those contained in the ~~aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the~~ Debt Commitment Letter and the related Fee Letter, containing conditions to draw, conditions to Closing and other terms that would reasonably be likely to affect the availability thereof that (A) are not ~~have~~ more onerous in any of material respect than those conditions and terms contained in the ~~effects prohibited pursuant~~ Debt Commitment Letter, (B) would not reasonably be likely to ~~amendment by Section 6.13(b~~materially delay the Closing or make the Closing materially less likely to occur, and (C) in an amount at least equal to the Debt Financing or such unavailable portion thereof (~~such financing,~~ the “Alternative Financing”) and to obtain (and, when obtained, to provide the Company with a copy of) a new financing commitment for the Alternative Financing (the “Alternative Financing Commitment Letter”), which new letter shall replace the existing Debt Commitment Letter in whole or in part. ~~Purchaser shall~~ In the event that any Alternative Financing Commitment Letters are obtained, (A) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1)~~ any ~~breach~~ reference in this Agreement to the “Commitment Letters” or ~~default by Purchaser or its Affiliates of~~ the “Debt Commitment Letter, ” will be deemed to include the Debt Commitment Letter to the extent not superseded by an Alternative Financing ~~or definitive financing agreements related thereto, (2)~~ Commitment Letter at the time in question and any ~~known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter,~~ Alternative Financing ~~or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the~~ Commitment ~~Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties~~ Letters to the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto,~~ extent then in effect and (B) ~~upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of~~ any reference in this Agreement to the ~~status of Purchaser’s and its Affiliates’ efforts~~ “Financing” or the “Debt Financing” means the debt financing contemplated by the Debt Commitment Letter as modified pursuant to ~~arrange~~ the ~~Financing or Alternative Financing~~foregoing. (bc) ~~Notwithstanding anything~~ Other than as set forth in Section 5.14(b), prior to the ~~contrary in this Agreement~~occurrence of the Satisfaction Date, ~~Purchaser and Purchaser~~ Parent shall not, without the prior written consent of ~~▇▇▇▇▇▇~~the Company (not to be unreasonably withheld, ~~(i) permit any termination~~conditioned or delayed), ~~amendment~~ replace, amend, modify, supplement or ~~modification to, or any waiver of~~ waive any provision ~~or remedy under,~~ of the Debt Commitment Letter ~~or Fee Letters if~~ to the extent such ~~termination~~replacement, amendment, ~~modification~~supplement, modification or waiver (individually or ~~remedy~~ in the aggregate with any other replacements, amendments, supplements, modifications or waivers) would reasonably be expected to (Ax) ~~adds~~ reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount thereof) to an amount that would not, together with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of the Equity Financing, be sufficient to pay the Required Cash Amount, or (y) impose any new ~~conditions~~ or additional condition, or otherwise replace, amend, modify or expand any condition, to the ~~Financing, (B) modifies~~ receipt of any ~~existing conditions to~~ portion of the Debt Financing in a manner that ~~affects~~ would reasonably be expected to (I) materially delay or prevent the ~~consummation of all~~ Closing, or ~~any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions,~~ (~~B) reduces the committed amount of the Financing, (C~~II) adversely ~~affects in any material respect~~ impact the ability of ~~Purchaser~~ Parent or Merger Sub to enforce its rights against any other ~~parties~~ party under the Debt Commitment Letter (collectively, the “Restricted Debt Commitment Letter Amendments”); provided that, subject to the limitations set forth in this Section 5.14(c), the Parent may replace, amend, supplement, modify or waive the Debt Commitment Letter (to the extent not prohibited by this Section 5.14(c)) (including to add additional agents, co-agents, lenders, lead arrangers, managers or similar entities that have not executed the ~~definitive agreements~~ Debt Commitment Letter as of the date hereof, together with any conforming or ministerial changes related thereto, but only if the addition of such parties, individually or in ~~respect thereof~~the aggregate, would not result in the occurrence of a Restricted Debt Commitment Letter Amendment). Upon any such replacement, amendment, supplement or other modification of, or ~~(D) could otherwise reasonably be expected to prevent~~waiver under, ~~impede or delay~~ the Debt Commitment Letters in ~~any material respect~~ accordance with this Section 5.14(c), the ~~consummation of~~ term “Debt Commitment Letter” shall mean the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Debt Commitment Letter as so replaced, amended, modified or waived and the term “Debt Financing” as used in this Agreement shall be deemed to include any ~~Alternative~~ Debt Financing contemplated by any ~~new debt commitment letter. (c) Prior~~ such Debt Commitment Letter as so replaced, amended, supplemented, modified or waived. Buyer shall promptly deliver to the ~~Closing~~Company true and correct copies of any such replacement, ~~Seller and ▇▇▇▇▇▇ shall~~amendment, ~~at Purchaser’s cost and expense~~restatement, ~~use reasonable best efforts to~~modification, ~~and to cause its Representatives to~~supplement, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing waiver or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light substitution of the ~~circumstances under which such statements are made~~Debt Commitment Letters. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Sirius International Insurance Group, Ltd.)

Financing. (a) ~~Purchaser and Purchaser Parent each shall use its reasonable best efforts~~ Subject 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 and to consummate the Financing (or any Alternative Financing) on~~ the terms and conditions ~~described in the Commitment Letter (including the flex provisions related thereto)~~of this Agreement, ~~subject to any amendments or modifications thereto permitted by Section 6.13(b), including using~~ Buyer shall use its reasonable best efforts to (i) maintain in effect the ~~Commitment Letter~~DIP Credit Agreement (subject to the right of Buyer to replace, restate, supplement, modify, assign, substitute or amend the DIP Credit Agreement in accordance herewith), (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis or obtain the waiver of all conditions applicable to ~~Purchaser~~ the DIP Borrower or its ~~Affiliates~~ subsidiaries contained in the ~~Commitment Letter, including~~ DIP Credit Agreement (or any definitive agreements related thereto) that are in the ~~payment~~ control of ~~any commitment, engagement or placement fees required as a condition to~~ the ~~Financing and due and payable by Purchaser~~ DIP Borrower or its ~~Affiliates~~subsidiaries, (iii) if applicable, obtain a DIP Amendment in form and substance reasonably satisfactory to Seller (it being agreed that the DIP Amendment entered on August 24, 2020 is satisfactory to Seller), and (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with enforce its ~~obligations~~ rights under the ~~Commitment Letter~~DIP Credit Agreement. ~~If Purchaser or Purchaser Parent becomes aware~~ Buyer shall give Seller prompt notice upon having knowledge of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of any of the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4)~~ provisions of the ~~receipt of notice of~~ DIP Credit Agreement that would reasonably be expected to delay the Closing. Buyer shall promptly provide Seller with any material ~~dispute or disagreement between or among~~ notices from the ~~parties~~ DIP Lenders relating to the ~~Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed~~ availability of the ~~status of Purchaser’s and its Affiliates’ efforts to arrange~~ DIP Financing at the ~~Financing or Alternative Financing~~Closing. (b) ~~Notwithstanding anything to the contrary~~ Other than as set forth in ~~this Agreement~~Section 4.25(c) or Section 3.4(d), ~~Purchaser and Purchaser Parent~~ Buyer shall not, without the prior written consent of ~~▇▇▇▇▇▇~~Seller, ~~(i)~~ permit any ~~termination,~~ material amendment or modification to be made to, or any material waiver of any provision or remedy under, the ~~Commitment Letter or Fee Letters if~~ DIP Credit Agreement to the extent such ~~termination,~~ amendment, ~~modification,~~ modification or waiver would (i) impose new or ~~remedy (A) adds new~~ additional conditions to the receipt of the DIP Financing, ~~(B) modifies~~ or otherwise amend or modify any ~~existing conditions~~ of the conditions, to the receipt of the DIP Financing in a manner that ~~affects the consummation of all or any portion of the Financing to below a level that~~ would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to ~~prevent, impede~~ prevent or materially impair or delay ~~in any material respect the consummation of~~ the Closing ~~or the Transactions,~~ or (ii) ~~undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation~~ reduce the aggregate amount of the DIP Financing ~~contemplated~~ such that Buyer would not or does not have sufficient cash proceeds (together with cash on hand or from other sources) to permit Buyer to pay the Required Amount; provided that Buyer shall notify Seller in writing, and provide to Seller complete and correct copies of, of any amendment, supplement or other modification of, or waiver of any provision or remedy under, the DIP Credit Agreement (including any DIP Amendment) not otherwise prohibited by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: foregoing clause (i) ~~assisting in preparation for and participation in customary marketing efforts related to the Financing~~ or ~~the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies,~~ (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable), and ~~(B) materials for rating agency presentations~~in any event within two Business Days, ~~(iii) furnishing Purchaser and~~ promptly after the ~~Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral~~time such amendment, ~~if applicable~~supplement, modification or waiver is agreed. ~~In addition~~Upon any such amendment, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates supplement or other ~~Representatives shall be required to pay any commitment~~ modification of, or ~~other similar fee~~waiver under, ~~provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability~~ the DIP Credit Agreement in ~~connection~~ accordance with ~~the Financing or the cooperation contemplated by~~ this Section ~~6.13(d~~4.25(b) or Section 3.4(d), ~~(ii) none of ▇▇▇▇▇▇~~the term “DIP Credit Agreement” shall mean the DIP Credit Agreement as so amended, ~~Seller~~ supplemented, modified or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04waived. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Gogo Inc.)

Financing. On or prior to the date of this Agreement, Purchaser has delivered to the Company and the Sellers true, complete and correct copies of (a) ~~Purchaser~~ an executed debt commitment letter, dated as of the date hereof (including all exhibits, annexes, schedules and ~~Purchaser Parent each shall use its reasonable best efforts~~ term sheets attached thereto) (the “Commitment Letter”) and (b) an executed fee letter, dated as of the date hereof (which may be redacted to ~~take~~remove only the fee amounts, fee percentages, price caps and other economic terms (including any economic market “flex” provisions) in a customary manner (none of which could reasonably be expected to adversely affect the conditionality, availability or ~~cause to be taken, all actions and to do,~~ termination of the Commitment Letter or ~~cause to be done, all things necessary, proper or advisable to obtain and to consummate~~ reduce the aggregate amount available under the Financing below the Financing Amount)) (~~or any Alternative Financing~~the “Fee Letter” and, together with the Commitment Letter, collectively, the “Debt Commitment Letter”), in each case of the foregoing clauses (a) and (b), from the Financing Sources party thereto, pursuant to which such Financing Sources have agreed, on the terms and subject to the conditions ~~described~~ set forth or referenced therein, to provide debt financing to Purchaser in the amounts set forth therein (the provision of such financing as set forth therein, the “Financing”). As of the date of this Agreement, the Debt Commitment Letter ~~(including~~ constitutes the ~~flex provisions related~~ legal, valid and binding obligation of Purchaser and, to the knowledge of Purchaser, each other party thereto), ~~subject~~ and enforceable against Purchaser and, to the knowledge of Purchaser, each other party thereto in accordance with its terms, in each case, except as enforceability may be limited by the Bankruptcy and Equity Exception. The Debt Commitment Letter has not been amended or modified in any ~~amendments~~ respect prior to or ~~modifications thereto permitted by Section 6.13(b)~~as of the date of this Agreement and, ~~including using its reasonable best efforts to (i) maintain in effect~~ as of the ~~Commitment Letter~~date of this Agreement, (iia) ~~negotiate~~ no Prohibited Modification is contemplated by Purchaser and ~~enter into definitive agreements with respect~~ (b) to the ~~Financing on~~ knowledge of Purchaser, the ~~terms and conditions (including the flex provisions)~~ commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded or terminated. As of the date of this Agreement, no event or circumstance has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of Purchaser or, to the knowledge of Purchaser, any of the other applicable parties thereto, under the Debt Commitment Letter~~, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in~~ . As of the ~~Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing~~ date hereof and ~~due and payable by Purchaser or its Affiliates, (iv) upon~~ assuming the satisfaction or waiver of ~~such conditions, consummate~~ the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in ~~the Commitment Letter~~ Section 7.1 and ~~that would not have any of the effects prohibited pursuant to amendment by~~ Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party 7.2 (other than ~~Purchaser or its Affiliates) of~~ those conditions that by their nature are to be satisfied at the ~~Commitment Letter~~Closing, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties but subject to the ~~Commitment Letter, Alternative Financing~~ satisfaction or ~~definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed~~ waiver of those conditions at the ~~status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement~~Closing), Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions has no reason to ~~the Financing, (B) modifies any existing conditions to the Financing in a manner~~ believe that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Debt Commitment Letter will not be available as of the Closing. There are (i) no conditions precedent related to the funding of the full amounts of the Financing other than as set forth in the Debt Commitment Letter (including any “market flex” provisions contained in the Fee Letter) and (ii) no other agreements to which Purchaser is a party that could limit, affect or ~~any Alternative~~ impair the availability of the Financing ~~contemplated~~ necessary to consummate the Closing on the Closing Date, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction or waiver of the conditions set forth in Section 7.1 and Section 7.2 (other than those conditions that by ~~any new debt commitment letter. (c) Prior~~ their nature are to be satisfied at the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be but subject to the ~~Confidentiality Agreement and Section 6.04. (e) In no event shall~~ satisfaction or waiver of those conditions at the ~~receipt or availability~~ Closing), the aggregate proceeds of the Financing, ~~Alternative~~ together with available unrestricted Cash of the Purchaser and other sources of liquidity available to the Purchaser, will be in an amount that is sufficient to fund all of Purchaser’s payment obligations contemplated by this Agreement (such amount in respect of the Financing, the “Financing Amount”). Purchaser has fully paid or caused to be paid any and all commitment fees and any other amounts required by the Debt Commitment Letter, in each case, required to be paid on or before the date of this Agreement. Each Party hereby acknowledges and agrees that the obligations of Purchaser under this Agreement are not subject to any conditions regarding Purchaser’s, its Affiliates’ or any other ~~funds or~~ Person’s ability to obtain financing ~~by Purchaser or any~~ for the consummation of ~~its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement~~the Transactions.

Appears in 1 contract

Sources: Equity Purchase Agreement (LPL Financial Holdings Inc.)

Financing. (a) ~~Purchaser~~ Unless, and ~~Purchaser Parent each~~ to the extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and for the Refinancing, from and after the execution of this Agreement, DigitalGlobe 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 obtain and to consummate~~ arrange the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment Letter and shall not permit any amendment or modification to be made to, any replacement of all or any portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy under, the Commitment Letter, if such amendment, modification, replacement or waiver (i) reduces the aggregate amount of the Financing (including by changing the ~~flex provisions related thereto~~amount of fees to be paid or original issue discount except by operation of the “market flex” provisions) or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of any portion of the Financing in a manner that would or would reasonably be expected to (A) delay or prevent the Closing or the Closing Date or (B) make the satisfaction of the conditions to obtaining the Financing materially less likely to occur or (C) adversely impact the ability of DigitalGlobe to enforce its rights against other parties to the Commitment Letter or the Definitive Agreements, in any material respect, including any right to seek specific performance of the Commitment Letter or the Definitive Agreements. Subject to the limitations set out in the first sentence of this Section 6.17(a), DigitalGlobe may amend, supplement, modify or replace the Commitment Letter as in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date of this Agreement, (y) to increase the amount of indebtedness and (z) to replace all or a portion of the facility committed under the Commitment Letter as in effect as of the date hereof with one or more new facilities under such Commitment Letter or under any new commitment letter or facility (any such new commitment or facility, a “Replacement Facility”) in a manner not materially less beneficial to DigitalGlobe (as determined in the reasonable judgment of DigitalGlobe), provided that any amendments, modifications or replacements of any Replacement Facility shall be subject to the same limitations that apply to the Commitment Letter as set forth in the first sentence of this Section 6.17(a). For purposes of this Agreement, (1) the term “Financing” shall be deemed to include the financing contemplated by the Commitment Letter as permitted to be amended, modified or replaced pursuant to this Section 6.17 (including any ~~amendments or modifications thereto permitted by Section 6.13(b~~Replacement Facility, any Alternative Financing), ~~including using~~ and (2) the term “Commitment Letter” shall be deemed to include the Commitment Letter as may be permitted to be amended, modified or replaced pursuant to this Section 6.17, any Replacement Facility, and any commitment letters with respect to the Alternative Financing and any related fee letters (it being understood that any Replacement Facility or Alternative Financing shall be subject to the terms herein that apply to the Commitment Letter). (b) Unless, and to the extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and for the Refinancing, DigitalGlobe shall use its reasonable best efforts to (i) maintain in effect the Commitment ~~Letter~~Letter pursuant to its terms (except for amendments not prohibited by Section 6.17(a)) until the transactions contemplated hereby are consummated, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions (including any applicable “market flex” provisions) contained in the ~~flex~~ Commitment Letter (“Definitive Agreements”) or on other terms not materially less favorable to DigitalGlobe than the terms and conditions (including any applicable “market flex” provisions) contained in the Commitment Letter~~, subject to any amendments or modifications thereto permitted by Section 6.13(b)~~, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions ~~applicable~~ to ~~Purchaser or its Affiliates contained~~ funding in the Commitment ~~Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing~~ Letter that are within its control and ~~due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions,~~ consummate the Financing on at or prior to the Closing ~~Date~~in accordance with the terms and conditions of the Commitment Letter at or prior to the Closing, ~~including~~ (iv) enforce its rights under the Commitment Letter in the event of a breach or other failure to fund the Financing required to consummate the Refinancing on the Closing Date by ~~drawing on any interim or bridge financing facilities contemplated thereby,~~ the lenders and other Persons providing Financing and (v) ~~obtain such third-party consents as may be reasonably required~~ comply in ~~connection with the Financing, and (vi) comply~~ all material respects with its covenants and other obligations under the Commitment ~~Letter. If Purchaser~~ Letter (or ~~Purchaser Parent becomes aware~~ obtain the waiver thereof). (c) Without limiting the generality of the foregoing, DigitalGlobe shall give GeoEye reasonably prompt notice: (i) of any ~~event~~ material breach or ~~circumstance~~ default by any party to the Commitment Letter or definitive document related to the Financing of which it becomes aware; (ii) of the receipt of any written notice or other written communication from any Financing Source with respect to any breach, default, termination or repudiation by any party to the Commitment Letter or any definitive document related to the Financing of any provisions of the Commitment Letter or any definitive document related to the Financing and (iii) if for any reason DigitalGlobe believes in good faith that ~~makes procurement of~~ it will not be able to obtain all or any portion of the Financing ~~reasonably unlikely~~ required to ~~occur~~ consummate the Refinancing. (d) Unless, and to the extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and for the Refinancing, in the ~~manner or from~~ event any portion of the ~~sources~~ Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, ~~Purchaser~~ DigitalGlobe shall use its reasonable best efforts to, as promptly as practicable, arrange alternative debt financing from the same or alternative sources in an amount sufficient to consummate the Refinancing (the “Alternative Financing”) following the occurrence of such event; provided however, that DigitalGlobe shall not be required to obtain financing which includes terms and conditions materially less favorable (taking into account any “market flex” provision) to DigitalGlobe, in each case relative to those in the Financing being replaced. DigitalGlobe shall promptly notify GeoEye of the receipt of any written notice from any lender named in the Commitment Letter to withdraw, terminate or reduce the aggregate amount of Financing contemplated by, the Commitment Letter. (e) On and ~~in any event within two (2) Business Days) notify ▇▇▇▇▇▇~~ prior to the Closing, GeoEye shall, and ~~Seller~~ shall cause GeoEye Subsidiaries to, and shall use its reasonable best efforts to ~~arrange as promptly as practicable any such portion from alternative sources on terms~~ cause its and ~~conditions not materially less favorable~~ their Representatives to reasonably cooperate with DigitalGlobe in connection with the ~~aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any~~ arrangement of ~~the effects prohibited pursuant to amendment by Section 6.13(b) (such financing~~Financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, including (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to promptly providing the Financing ~~in a manner that affects the consummation of~~ Sources and their agents with all ~~or any portion of the Financing~~ financial and other pertinent information regarding GeoEye and GeoEye Subsidiaries required to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties be delivered pursuant to the Commitment Letter or ~~the definitive agreements in respect thereof, or (D) could otherwise~~ as may be reasonably ~~be expected to prevent, impede or delay in any material respect the consummation of the Closing~~ requested by DigitalGlobe or the ~~Transactions,~~ Financing Sources or their respective agents to prepare customary bank information memoranda and lender presentations in connection with such Financing; (ii) ~~undertake~~ participating (including by making members of senior management with appropriate seniority and expertise available to participate) in a reasonable number of meetings, due diligence sessions, presentations, “road shows”, drafting sessions and sessions with the rating agencies in connection with the Financing; (iii) reasonably cooperating with the Financing Sources’ and its agents’ due diligence, to the extent not unreasonably interfering with the business of GeoEye; (iv) reasonably cooperating with the marketing efforts for any ~~merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation~~ portion of the Financing, including using its reasonable best efforts to ensure that any syndication effort benefits from any existing banking relationship; (v) reasonably cooperating with DigitalGlobe’s preparation of bank information memoranda and similar documents, rating agency presentations, and road show presentations used to complete such Financing, to the extent information contained therein relates to the business of GeoEye and GeoEye Subsidiaries; (vi) using reasonable best efforts to cause its certified independent auditors to provide, in connection with the Financing, (A) applicable consent to SEC filings that include or incorporate GeoEye’s consolidated financial information (with such changes as GeoEye and its auditors deem necessary or appropriate) and their reports thereon, in each case, to the extent such consent is required, auditors reports and comfort letters with respect to financial information relating to GeoEye and GeoEye Subsidiaries in customary form and (B) other documentation (including reasonable assistance in the preparation of pro forma financial statements by DigitalGlobe, to the extent such other documentation is required); provided that it is understood that assumptions underlying the pro forma adjustments to be made are the responsibility of DigitalGlobe; (vii) providing customary certificates, legal opinions of internal counsel or other customary closing documents as may be reasonably requested by DigitalGlobe or its Financing Sources in connection with the Financing; (viii) entering into one or more credit or other agreements on terms contemplated by the Commitment Letter in connection with the Financing; (ix) taking all actions reasonably necessary in connection with the payoff of existing indebtedness of GeoEye and GeoEye Subsidiaries on the Closing Date and the release of related Liens on the Closing Date (including any necessary prepayment of GeoEye’s existing indebtedness); (x) executing and delivering any pledge and security documents or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is other definitive financing documents reasonably requested by ~~Purchaser~~ DigitalGlobe or its Financing Sources in connection with the Financing, in each case of clauses (vii), (viii), (ix) and (x), conditional upon the actual occurrence of the Closing; (xi) reasonably cooperating with DigitalGlobe in providing customary information with respect to its property and assets reasonably required in connection with the Financing and reasonably facilitating the pledging of collateral and providing of guarantees with respect to the Financing upon Closing and, subject to the occurrence of the Closing, taking corporate actions necessary to permit the consummation of the Financing; (~~provided that such~~ xii) assisting DigitalGlobe as reasonably requested ~~cooperation does not unreasonably interfere with the ongoing operations of Seller,~~ thereby in seeking to obtain ratings from M▇▇▇▇▇’▇ Investors Service, Inc. and ~~their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for~~ Standard and ~~participation in customary marketing efforts related to the Financing or the Alternative Financing~~Poor’s Rating Services, ~~as applicable with prospective lenders~~a division of The McGraw Hill Companies, ~~investors and ratings agencies~~Inc., (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the ~~pledging~~ borrower of ~~collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser~~ the Financing and the senior secured facilities described in the Commitment Letter; and (xiii) delivering to DigitalGlobe for further distribution to the lenders under the Financing ~~Sources~~ all documentation and other information required by bank regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including the ~~Required Information in a manner that~~U.S.A. PATRIOT ACT (Title III of Pub. L. 107 56 (signed into law October 26, ~~taken as a whole~~2011)); provided, ~~does not contain any untrue statement~~ however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of ~~a material fact regarding the Purchased Assets~~ GeoEye or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) GeoEye Subsidiaries. Notwithstanding the foregoing, (iA) ~~none of ▇▇▇▇▇▇, Seller or~~ neither GeoEye nor any of ~~their respective Affiliates or other Representatives~~ the GeoEye Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any out-of-pocket cost or expense not reimbursed by DigitalGlobe or to pay any commitment or ~~other~~ any similar ~~fee, provide any security, execute any document, make any representations, provide any indemnification~~ fee or incur any other ~~expense~~ liability or ~~Liability~~ provide or agree to provide any indemnity in connection with the Financing or ~~the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or~~ any of ~~their respective Affiliates or other Representatives~~ the foregoing, prior to the Closing and (B) neither GeoEye nor any of the GeoEye Subsidiaries shall be required to ~~provide~~ execute prior to the Closing any ~~solvency opinion or legal opinion~~ definitive financing documents, including any credit or other ~~opinion of counsel~~agreements, pledge or security documents, or ~~any information that would~~other certificates, ~~in the reasonable opinion of ▇▇▇▇▇▇~~ legal opinions or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) documents in connection with the ~~cooperation contemplated~~ Financing. All non-public or other confidential information provided by GeoEye or any of its Representatives pursuant to this Section ~~6.13(d~~6.17(e) shall be kept confidential in accordance with the Confidentiality Agreement, except that DigitalGlobe shall be permitted to disclose such information to potential financing sources and to rating agencies during the syndication and marketing of the Financing subject to customary confidentiality undertakings by such potential financing sources. (f) DigitalGlobe shall indemnify and hold harmless ~~▇▇▇▇▇▇~~GeoEye, ~~Seller~~ GeoEye Subsidiaries and their respective ~~Affiliates~~ Representatives from and against any and all ~~Liabilities~~ liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the Financing or the ~~cooperation contemplated by this~~ arrangement thereof (including any action taken in accordance with Section ~~6.13(d~~6.17(e)) and any information utilized in connection therewith (~~iv) none of ▇▇▇▇▇▇, Seller~~ other than information relating to GeoEye or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information GeoEye Subsidiaries provided to ~~Purchaser~~ DigitalGlobe in writing on or behalf of GeoEye, GeoEye Subsidiaries or its ~~Affiliates pursuant to this~~ and their Representatives expressly for use in connection with the Financing). For purposes of Section ~~6.13(d~~7.02(b), the obligations of GeoEye as set forth in the foregoing Section 6.17(e)(vi)(A) shall be ~~subject~~ deemed to exclude the ~~Confidentiality Agreement and Section 6.04~~phrase “using reasonable best efforts”. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Digitalglobe Inc)

Financing. (a) ~~Purchaser~~ (i) Subject to the terms and ~~Purchaser~~ conditions of this Agreement, each of Parent ~~each~~ and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the ~~Commitment Letter~~ Financing Letters (including ~~the flex provisions related thereto~~any applicable “market flex” provisions), ~~subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate~~ it being understood and ~~enter into definitive agreements with respect to~~ agreed that a portion of the Financing on may consist of a High Yield Note Transaction. Subject to the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, ~~Purchaser~~ each of Parent and ~~Purchaser Parent~~ Merger Sub shall ~~not, without the prior written consent of ▇▇▇▇▇▇, (i)~~ not permit any ~~termination,~~ amendment or modification to be made to, or any waiver of any material provision ~~or remedy under~~under the Financing Letters, ~~the Commitment Letter or Fee Letters~~ if such ~~termination,~~ amendment, ~~modification,~~ modification or waiver ~~or remedy~~ (A) ~~adds new conditions~~ with respect to the ~~Financing~~Financing Letters, reduces the aggregate amount of the Financing unless the Debt Financing or the Equity Financing is increased by a corresponding amount no later than the date of such amendment, modification or waiver, (B) imposes additional conditions precedent to the initial availability of the Debt Financing or amends or modifies any of the existing conditions to the initial funding of the Financing in a manner that ~~affects~~ would reasonably be expected to delay, prevent or render materially less likely to occur the ~~consummation of all or any portion~~ funding of the Financing ~~to below a level that would impair Purchaser’s ability to consummate the Transactions,~~ (~~B) reduces the committed amount~~ or satisfaction of the conditions to the Financing, ) on the Closing Date or (C) adversely ~~affects in any material respect~~ impact the ability of ~~Purchaser~~ Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the ~~Commitment Letter~~ Financing Letters or the definitive agreements with respect thereto, in ~~respect thereof~~each of clauses (B) and (C), ~~or (D) could otherwise reasonably be expected to prevent, impede or delay~~ in any material ~~respect~~ respect. Parent shall promptly deliver to the ~~consummation~~ Company copies of any such amendment, modification or replacement. For purposes of this Section 5.5, references to “Financing” and “Debt Financing” shall include the financing contemplated by the Financing Letters (including a High Yield Note Transaction referred to in the Debt Commitment Letters or the Redacted Fee Letter) as permitted to be amended, modified or replaced by this Section 5.5(a), and references to “Debt Commitment Letters” shall include such documents as permitted to be amended, modified or replaced by this Section 5.5(a). Notwithstanding anything to the contrary contained herein, each party to this Agreement confirms its understanding and agreement that (a) a portion of the ~~Closing~~ Financing may consist of a High Yield Note Transaction in addition to or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation in lieu of ~~the~~ a portion of other Financing contemplated by the Debt Commitment ~~Letter or any Alternative~~ Letters, and (b) the Company’s obligations pursuant to Section 5.5(b) shall apply to both a High Yield Note Transaction and such other Financing contemplated by ~~any new debt commitment letter~~the Debt Commitment Letters. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Jo-Ann Stores Inc)

Financing. (a) ~~Purchaser and Purchaser Parent each~~ Buyer shall use its, and shall cause its controlled Affiliates to 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 consummate and obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and subject only to the conditions ~~described~~ (including the market “flex” provisions) set forth in the Commitment ~~Letter (including~~ Papers contemporaneously with the ~~flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b)~~Closing, including by using its reasonable best efforts to (i) maintain in effect the Commitment ~~Letter~~Papers, (ii) negotiate and enter into definitive agreements with respect to the Financing on (the “Definitive Agreements”) consistent with the terms and conditions ~~(including the flex provisions)~~ contained in the Commitment ~~Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b),~~ Papers and (iii) ~~satisfy on a timely basis~~ if all of the conditions ~~applicable~~ to ~~Purchaser or its Affiliates~~ the Closing contained in Article VI are satisfied or waived (other than those conditions that by their terms are to be satisfied or waived at the ~~Commitment Letter~~Closing or will be satisfied or waived upon funding) and the Marketing Period has ended, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing satisfy on or prior to the Closing ~~Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required~~ Date all conditions in ~~connection with~~ the ~~Financing,~~ Commitment Papers and ~~(vi)~~ the Definitive Agreements and comply with its obligations ~~under~~ thereunder. In the ~~Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any~~ event ~~or circumstance~~ that ~~makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated~~ all conditions contained in the Commitment ~~Letter~~Papers or the Definitive Agreements (other than the consummation of the Transaction and other than those that by their nature are to be satisfied at the Closing) have been satisfied or waived, ~~Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and~~ Buyer shall use its reasonable best efforts to ~~arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and~~ enforce its ~~Affiliates than the terms and conditions set forth in~~ rights under the Commitment ~~Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing~~Papers, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ including using reasonable best efforts to ~~arrange~~ cause the ~~Financing or Alternative~~ Lender Related Parties to comply with their respective obligations thereunder, including to fund the Financing~~. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent~~ . Buyer shall not, without the prior written consent of ~~▇▇▇▇▇▇~~Seller, ~~(i)~~ permit any ~~termination~~termination of or amendment, ~~amendment~~ supplement or modification to be made to, or grant any waiver of any provision ~~or remedy~~ under, the Commitment ~~Letter or Fee Letters~~ Papers if such termination, amendment, ~~modification~~supplement, modification or waiver ~~or remedy~~ would (A) ~~adds new conditions to~~ reduce the aggregate amount of the Financing, (B) ~~modifies~~ impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any ~~existing~~ of the conditions precedent to the Financing in a manner that ~~affects the consummation of all or any portion of the Financing to below a level that~~ would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) adversely affects in any material respect the ability of Purchaser to enforce its rights against other parties to the Commitment Letter or the definitive agreements in respect thereof, or (D) could otherwise reasonably be expected to prevent, impede or delay ~~in any material respect~~ the ~~consummation~~ funding of the Financing, (C) adversely impact the ability of Buyer to enforce its rights against the other parties to the Commitment Papers or (D) would otherwise reasonably be expected to prevent or impede or delay the funding of the Financing, provided, that at Closing, Buyer may reduce the commitments under the Commitment Papers substantially contemporaneously with the payment of all amounts due at Closing to the extent Buyer is using funds other than proceeds of the Financing to make such payments. Buyer shall promptly deliver to Seller true and complete copies of any amendment, modification, supplement, consent or waiver to or under any Commitment Papers promptly upon execution thereof. (b) Buyer shall keep Seller informed on a reasonably prompt basis and in reasonable detail of the ~~Transactions~~status of its efforts to arrange the Financing. Without limiting the generality of the foregoing, Buyer shall give Seller prompt written notice of (i) any actual or threatened breach, default, termination, cancellation or repudiation by any party to the Commitment Papers and the receipt of any written notice or other written communication from any Financing Source with respect to any breach, default, termination, cancellation or repudiation by any party to the Commitment Papers, or (ii) ~~undertake any merger, acquisition, joint venture, disposition, lease, Contract~~ the occurrence of an event or ~~debt or equity financing~~ development that could reasonably be expected to ~~materially impair, delay~~ adversely affect the ability of Buyer to obtain all or ~~prevent consummation~~ any portion of the Financing on the Closing Date to the extent necessary to fund the Closing Cash Consideration. As soon as reasonably practicable after Seller delivers to Buyer a written request, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in the immediately preceding sentence. If the Financing becomes unavailable on the terms and conditions (including any applicable market “flex” provisions) contemplated by the Commitment ~~Letter or any Alternative Financing contemplated by any new debt commitment letter.~~ Papers (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation other than solely as ~~is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations~~ a result of Seller’s material breach of any covenant in this Section 5.22), ~~▇▇▇▇▇▇ and their respective Affiliates). Such assistance~~ Buyer shall ~~include the following:~~ (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to ~~provide~~ arrange and obtain, in replacement thereof alternative financing (the “Alternative Financing”) in an amount, when combined with cash on hand of Buyer or otherwise available to ~~Purchaser and~~ Buyer through its existing credit facilities, sufficient to consummate the ~~Financing Sources the Required Information in a manner that,~~ Transaction with (a) terms (including market “flex” provisions) (taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business ) not materially ~~misleading~~ less favorable to Buyer (or its Affiliates) than the terms set forth in the ~~light~~ Commitment Papers, and (b) conditions (taken as a whole) not less favorable to Buyer (or its Affiliates) than the conditions set forth in the Commitment Papers and (ii) promptly notify Seller of such unavailability and the reason therefor. Upon any amendment, supplement, modification, waiver or replacement of the ~~circumstances under which such statements are made.~~ Commitment Papers in accordance with the terms hereof (~~d) Notwithstanding~~ including upon the ~~foregoing, (i) none~~ execution of ~~▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay~~ any commitment letter or ~~other similar fee~~fee letter in respect of any Alternative Financing), ~~provide any security~~the terms “Financing”, ~~execute any document~~“Commitment Letter”; “Fee Letter” and “Commitment Papers” shall mean the applicable Financing, ~~make any representations~~Commitment Letters, ~~provide any indemnification~~ Fee Letters and Commitment Papers as so amended, supplemented, modified, waived or ~~incur any other expense~~ replaced, and Buyer shall deliver to Seller true and complete copies of the alternative debt financing letters (including fee letters that shall have fee or ~~Liability~~ related information redacted in ~~connection~~ a manner consistent with the ~~Financing or~~ Fee Letter delivered as of the ~~cooperation~~ date of this Agreement). The foregoing notwithstanding, compliance by Buyer with this Section 5.22 shall not relieve Buyer of its obligation to consummate the transactions contemplated by this ~~Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller~~ Agreement whether or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with not the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04available. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Asset Purchase Agreement (Science Applications International Corp)

Financing. (a) ~~Purchaser~~ (i) Subject to the terms and ~~Purchaser~~ conditions of this Agreement, each of the Parent ~~each~~ and the Merger Sub shall use its reasonable best efforts to ~~take, or cause to be taken, all actions~~ arrange and ~~to do, or cause to be done, all things necessary, proper or advisable to~~ obtain ~~and to consummate~~ the Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Commitment Letter (including the flex provisions related thereto), subject to any amendments or modifications thereto permitted by Section 6.13(b), including using its reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect Financing Letters pursuant to the ~~Financing on~~ terms thereof. The Parent and the terms and conditions (including the flex provisions) contained in the Commitment Letter, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the Financing and due and payable by Purchaser or its Affiliates, (iv) upon the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser Merger Sub shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions set forth in the Commitment Letter and that would not have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall (A) give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, and (B) upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing or Alternative Financing. (b) Notwithstanding anything to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any ~~termination~~amendment, ~~amendment~~ supplement, replacement or modification to be made to, or any waiver of any provision ~~or remedy~~ under, the ~~Commitment Letter or Fee~~ Financing Letters if such ~~termination,~~ amendment, ~~modification~~supplement, replacement, modification or waiver ~~or remedy~~ (A) ~~adds~~ reduces (or could have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount and (y) after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 3.8 shall be true and correct) ; provided that any such reduction in the aggregate amount of the Financing may be replaced with an amount of new equity financing on terms no less favorable in any material respect to the Company and the Company Subsidiaries than the terms set forth in the Equity Funding Letters or additional debt financing pursuant to the Debt Commitment Letters as may be modified in accordance with the terms hereof or (B) imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the receipt of the initial Financing, or otherwise expands, amends or modifies any other provision of the Financing Letters, in a manner that would reasonably be expected to (x) materially 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 (By) modifies any existing conditions to the Financing in a manner that affects the consummation of all or any portion of the Financing to below a level that would impair Purchaser’s ability to consummate the Transactions, (B) reduces the committed amount of the Financing, (C) materially adversely ~~affects in any material respect~~ impact the ability of ~~Purchaser~~ the Parent, the Merger Sub or the Company, as applicable, to enforce its rights against other parties to the ~~Commitment Letter~~ Financing Letters or the definitive agreements in with respect ~~thereof~~thereto (provided that the Parent and the Merger Sub may amend the Debt Commitment Letters to add or replace lenders, lead arrangers, bookrunners, syndication agents or (D) could otherwise reasonably be expected to prevent, impede or delay in any material respect the consummation of the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could similar entities so long as such action would not reasonably be expected to materially ~~impair,~~ delay or prevent ~~consummation of~~ the ~~Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior~~ Closing). The Parent shall promptly deliver to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following: (i) assisting in preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing, as applicable with prospective lenders, investors and ratings agencies, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to provide to Purchaser and the Financing Sources the Required Information in a manner that, taken as a whole, does not contain any untrue statement of a material fact regarding the Purchased Assets or the Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading in the light of the circumstances under which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of ▇▇▇▇▇▇ or Seller, result in a violation of Law or loss of attorney-client privilege, (iii) Purchaser shall promptly, upon request by ▇▇▇▇▇▇ or Seller, reimburse ▇▇▇▇▇▇, Seller and their respective Affiliates for all out-of-pocket fees, costs and expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with the cooperation contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors Company copies of any ~~of the foregoing~~such amendment, ~~shall be required to pass resolutions~~ modification or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04replacement. (e) In no event shall the receipt or availability of the Financing, Alternative Financing or any other funds or financing by Purchaser or any of its Affiliates be a condition to any of Purchaser’s or Purchaser Parent’s obligations under this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Renaissance Learning Inc)

Financing. (a) Notwithstanding anything in this Agreement to the contrary, Purchaser acknowledges and agrees that Purchaser’s obligations under this Agreement are not conditioned in any manner whatsoever upon Purchaser ~~Parent each~~ obtaining the Debt Financing to satisfy the Financing Purposes, and the obtaining of the Debt Financing is not a condition to Closing or the consummation of the Transactions. (b) Purchaser shall, and shall cause its controlled Affiliates to, use ~~its~~ reasonable best efforts to take, or cause to be taken, all ~~actions~~ actions, and to do, or cause to be done, all things ~~necessary~~necessary to arrange, ~~proper or advisable to~~ consummate and obtain ~~and to consummate~~ the Debt Financing ~~(or any Alternative Financing)~~ on the terms and conditions described in the Debt Financing Commitment and the Fee Letter (including the ~~flex~~ “market flex” provisions ~~related thereto), subject to any amendments or modifications thereto permitted~~ set forth in the Fee Letter) by ~~Section 6.13(b)~~no later than the Closing Date, including using its (and causing its controlled Affiliates to use) reasonable best efforts to (i) maintain in full force and effect (and comply with their respective obligations under) the Debt Financing Commitment on the terms and conditions contained therein (including, to the extent the same are exercised, the “market flex” provisions set forth in the Fee Letter) until the Transactions are consummated (other than modifications to such terms and conditions as are acceptable to Purchaser so long as such modifications would not violate the restrictions on amendments and modifications otherwise set forth in ‎Section 6.8(c)), (ii) negotiate and enter into definitive agreements with respect ~~to the Financing~~ thereto on the terms and conditions contained therein (~~including the flex provisions) contained in the Commitment Letter~~including, subject to any amendments or modifications thereto permitted by Section 6.13(b), (iii) satisfy on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Commitment Letter, including the payment of any commitment, engagement or placement fees required as a condition to the ~~Financing and due and payable by Purchaser or its Affiliates~~extent the same are exercised, ~~(iv) upon~~ the satisfaction or waiver of such conditions, consummate the Financing on or prior to the Closing Date, including by drawing on any interim or bridge financing facilities contemplated thereby, (v) obtain such third-party consents as may be reasonably required in connection with the Financing, and (vi) comply with its obligations under the Commitment Letter. If Purchaser or Purchaser Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing reasonably unlikely to occur in the manner or from the sources contemplated in the Commitment Letter, Purchaser shall promptly (and in any event within two (2) Business Days) notify ▇▇▇▇▇▇ and Seller and shall use its reasonable best efforts to arrange as promptly as practicable any such portion from alternative sources on terms and conditions not materially less favorable in the aggregate to Purchaser and its Affiliates than the terms and conditions “market flex” provisions set forth in the ~~Commitment Letter and~~ Fee Letter) or on other terms acceptable to Purchaser that would not ~~have any of the effects prohibited pursuant to amendment by Section 6.13(b) (such financing, the “Alternative Financing”). Purchaser shall~~ (A) ~~give ▇▇▇▇▇▇ and Seller prompt oral and written notice of (1) any breach or default by Purchaser or its Affiliates~~ reduce the aggregate amount of the ~~Commitment Letter~~Debt Financing to an amount less than, Alternative Financing or definitive financing agreements related thereto, (2) any known breach or default by any party (other than Purchaser or its Affiliates) of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto, (3) any purported termination or repudiation by any party of the Commitment Letter, Alternative Financing or definitive financing agreements related thereto or (4) the receipt of notice of any material dispute or disagreement between or among the parties when taken together with cash available to the ~~Commitment Letter~~Purchaser, ~~Alternative~~ the amount necessary to satisfy the Financing Purposes, or ~~definitive financing agreements related thereto, and~~ (B) ~~upon request, otherwise keep ▇▇▇▇▇▇ and Seller reasonably informed of the status of Purchaser’s and its Affiliates’ efforts to arrange the Financing~~ impose new or ~~Alternative Financing. (b) Notwithstanding anything~~ additional conditions precedent to the contrary in this Agreement, Purchaser and Purchaser Parent shall not, without the prior written consent of ▇▇▇▇▇▇, (i) permit any termination, amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Fee Letters if such termination, amendment, modification, waiver or remedy (A) adds new conditions to the Financing, (B) modifies any existing conditions to the Financing in a manner that affects the consummation receipt of all or any portion of the Debt Financing and (iii) taking into account the expected timing of Closing pursuant to Section 2.4, satisfy on a timely basis (or obtain a waiver of) all conditions applicable to Purchaser in the Debt Financing Commitment. If all of the conditions to Purchaser’s obligations under Section 8.1 and Section 8.2 (other than those conditions that by their terms, are to be satisfied on the Closing Date; provided that each such condition is then capable of being satisfied) have been satisfied or waived, Purchaser shall cause the Debt Financing to ~~below a level~~ be consummated, and shall cause the Debt Financing Sources to fund the Debt Financing, in each case at or prior to the Closing. (c) Purchaser shall not, and shall cause its controlled Affiliates not to, permit any amendment, restatement, modification, waiver, termination or replacement of the Debt Financing Commitment (or any portion of the Debt Financing thereunder) without the prior written consent of Seller that (i) reduces (or could have the effect of reducing) the amount of aggregate cash proceeds available from the Debt Financing (including by increasing the amount of fees to be paid or original issue discount) to an amount less than, when taken together with cash available to the Purchaser, the amount necessary to satisfy the Financing Purposes, (ii) imposes new or additional conditions to the receipt of all or any portion of the Debt Financing or expands, amends or modifies any conditions to the receipt of all or any portion of the Debt Financing on the Closing Date, or (iii) would reasonably be expected to (A) delay, prevent, impede or make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date or otherwise prevent, delay or impair ~~Purchaser’s~~ the ability or likelihood of Purchaser to timely consummate the ~~Transactions,~~ Transactions or (B) ~~reduces the committed amount of the Financing, (C)~~ adversely ~~affects in any material respect~~ impact the ability of Purchaser to enforce its rights against the Debt Financing Sources or any other parties to the ~~Commitment Letter~~ Debt Financing or the definitive agreements in with respect ~~thereof,~~ thereto or (Div) ~~could otherwise reasonably be expected to prevent, impede~~ relieves or ~~delay~~ releases any Debt Financing Source from its obligations under the Debt Financing Commitment (other than as expressly provided for in ~~any material respect~~ the ~~consummation of~~ Debt Financing Commitment as in effect on the Closing or the Transactions, or (ii) undertake any merger, acquisition, joint venture, disposition, lease, Contract or debt or equity financing that could reasonably be expected to materially impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter or any Alternative Financing contemplated by any new debt commitment letter. (c) Prior to the Closing, Seller and ▇▇▇▇▇▇ shall, at Purchaser’s cost and expense, use reasonable best efforts to, and to cause its Representatives to, provide to Purchaser such cooperation as is reasonably requested by Purchaser date hereof in connection with the designation of additional arrangers); provided, that, for the avoidance of doubt, Purchaser may amend, restate or modify the Debt Financing Commitment to (1) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitment as of the date hereof and to grant to such Debt Financing Sources such approval rights as are customarily granted to additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, (2) increase the commitments or the amount of indebtedness thereunder, (3) amends the definitive agreements with respect to the Debt Financing to give effect to any “market flex” terms contained in the Debt Financing Commitment, or (4) amend titles, allocations and fee sharing arrangements with respect to existing and additional Debt Financing Sources. Purchaser shall promptly deliver copies of any amendment, modification, supplement or waiver to the Debt Financing Commitment or Fee Letter to Seller (which may, in the case of the Fee Letter, be redacted as provided in Section 5.7). (d) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment (including the “market flex” provisions set forth in the Fee Letter), or if Purchaser reasonably determines that such ~~requested cooperation does not unreasonably interfere with~~ funds may become unavailable to Purchaser on the ~~ongoing operations~~ terms and conditions set forth therein, Purchaser shall as promptly as practicable following the occurrence of ~~Seller, ▇▇▇▇▇▇ and their respective Affiliates). Such assistance shall include the following:~~ such event (i) ~~assisting~~ notify Seller in ~~preparation for and participation in customary marketing efforts related to the Financing or the Alternative Financing,~~ writing thereof as ~~applicable with prospective lenders, investors and ratings agencies~~promptly as practicable after obtaining knowledge thereof, (ii) assisting Purchaser and the Financing Sources in the preparation of (A) a customary offering document, private placement memorandum and/or bank information memorandum and similar marketing documents for the Financing or the Alternative Financing, as applicable, and (B) materials for rating agency presentations, (iii) furnishing Purchaser and the Financing Sources the Required Information; and (iv) facilitating Purchaser’s preparation of documentation with respect to the pledging of collateral, if applicable. In addition, Seller will use its reasonable best efforts to ~~provide~~ obtain and to ~~Purchaser~~ negotiate and enter into definitive agreements with respect to alternative financing in an amount equal to such portion of the Debt Financing ~~Sources~~ from the ~~Required Information in a manner that~~same or alternative debt financing sources (“Alternative Financing”) on terms and conditions no less favorable to Purchaser, taken as a whole, ~~does not contain any untrue statement of a material fact regarding~~ than as contemplated by the ~~Purchased Assets or~~ Debt Financing Commitment (taking into account the ~~Triage Business or omit to state a material fact necessary to make the statements contained therein regarding the Purchased Assets or the Triage Business not materially misleading~~ “market flex” provisions set forth in the ~~light~~ Fee Letter) or otherwise sufficient to enable Purchaser to consummate the Transactions, and (iii) use its reasonable best efforts to obtain a new financing commitment letter that provides for such Alternative Financing and, promptly after execution thereof, deliver to Seller true, complete and correct copies of the ~~circumstances under~~ new commitment letter and the related fee letters (which such statements are made. (d) Notwithstanding the foregoing, (i) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to pay any commitment or other similar fee, provide any security, execute any document, make any representations, provide any indemnification or incur any other expense or Liability in connection with the Financing or the cooperation contemplated by this Section 6.13(d), (ii) none of ▇▇▇▇▇▇, Seller or any of their respective Affiliates or other Representatives shall be required to provide any solvency opinion or legal opinion or other opinion of counsel, or any information that wouldmay, in the ~~reasonable opinion~~ case of ~~▇▇▇▇▇▇ or Seller~~fee letters, ~~result~~ be redacted as provided in Section 5.7) and related definitive financing documents with respect to such Alternative Financing. In the event any Alternative Financing is obtained and a ~~violation of Law or loss of attorney-client privilege~~new debt financing commitment is entered into in accordance with this Section 6.8(d), references in this Agreement to (~~iii~~A) ~~Purchaser~~ “Debt Financing Commitment” shall ~~promptly~~be deemed to include and mean any new debt financing commitment to the extent then in effect and include and mean the Debt Financing Commitment to the extent not superseded by a new debt financing commitment, ~~upon request by ▇▇▇▇▇▇ or Seller~~as the case may be, ~~reimburse ▇▇▇▇▇▇~~at the time in question and any new debt financing commitment to the extent then in effect, ~~Seller~~ and ~~their respective Affiliates for all out-of-pocket fees, costs~~ (B) “Debt Financing” shall include and ~~expenses incurred by any of them (including reasonable attorneys’ fees and other fees and expenses as incurred) in connection with~~ mean the ~~cooperation~~ financing contemplated by this Section 6.13(d) and shall indemnify and hold harmless ▇▇▇▇▇▇, Seller and their respective Affiliates from and against any and all Liabilities incurred by any of them in connection with the Debt Financing or the cooperation contemplated by this Section 6.13(d) and (iv) none of ▇▇▇▇▇▇, Seller or their respective Affiliates, or any Persons who are directors of any of the foregoing, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or execute or deliver any certificate, document, instrument or agreement that is effective prior Commitment as modified pursuant to the Closing or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to Purchaser or its Affiliates pursuant to this Section 6.13(d) shall be subject to the Confidentiality Agreement and Section 6.04immediately preceding clause (A). (e) ~~In no~~ Purchaser shall, as promptly as practicable after obtaining knowledge thereof, give Seller written notice of any (i) material breach or default (or any event ~~shall~~ or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) related to the ~~receipt~~ Debt Financing, (ii) actual or ~~availability~~ threatened (in writing) withdrawal, repudiation or termination by any party to the Debt Financing Commitment or definitive agreements related to the Debt Financing, (iii) material dispute or disagreement between or among any parties to the Debt Financing Commitment or definitive agreements related to the Debt Financing with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at the Closing, (iv) without limiting any of Seller’s rights hereunder, amendment or modification of, or waiver under, the Debt Financing Commitment and the Debt Financing, ~~Alternative~~ (v) notification from one or more parties to the Debt Financing Commitment or any party to any definitive agreements related to the Debt Financing of the failure or inability to satisfy one or more conditions precedent to the Debt Financing, or (vi) change, circumstance or event that causes Purchaser to believe that it shall not be able to timely obtain all or any portion of the Debt Financing. As soon as reasonably practicable, but in any event within three (3) Business Days after the date Seller delivers to Purchaser a written request, Purchaser shall provide any information reasonably requested by Seller relating to any circumstance referred to in clauses (i) – (vi) of the immediately preceding sentence. Purchaser shall keep Seller informed on a reasonably current basis of the status of its efforts to arrange the Debt Financing contemplated by the Debt Financing Commitment. In the event that Purchaser commences an enforcement action to enforce its rights under any agreement in respect of the Debt Financing or to cause any ~~other funds or financing by Purchaser~~ Debt Financing Source to fund all or any portion of ~~its Affiliates be a condition to any~~ the Debt Financing, Purchaser shall keep Seller reasonably informed of ~~Purchaser’s or Purchaser Parent’s obligations under this Agreement~~the status of such enforcement action.

Appears in 1 contract

Sources: Stock Purchase Agreement (Simply Good Foods Co)

Common use of Financing Clause in Contracts